Federal judge temporarily blocks Biden’s 100-day deportation moratorium

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A federal judge on Tuesday temporarily halted the Biden administration’s 100-day moratorium on certain deportations of immigrants already in the U.S. in an early legal battle over President Joe Biden’s immigration policy.

U.S. District Judge Drew Tipton of the Southern District of Texas agreed to pause the policy for at least 14 days while he considered a lawsuit filed by Texas’ Republican attorney general, Ken Paxton, who argued in a complaint on Friday that the deportation freeze violated immigration law and a legal agreement the state brokered with the Trump administration before Mr. Biden took office.

The moratorium, one of Mr. Biden’s campaign promises, shielded most immigrants facing deportation from being removed from the U.S., as long as they entered the country before November 1, 2020. It does not apply to those who pose a national security risk or are suspected of terrorism or espionage. Immigrants could also agree to voluntarily leave the country.

On January 8, Ken Cuccinelli, who was then the second-in-command at the Department of Homeland Security (DHS), signed an agreement committing the department “to consult Texas and consider its views” before changing policies governing the enforcement of federal immigration law. 

DHS signed similar deals with other states and localities, but legal experts have questioned whether they are legally enforceable.

Texas alleged in its lawsuit that DHS should have informed the state of the 100-day deportation pause before implementing it. It also claimed the policy violates federal immigration law that governs arrests and deportations of immigrants living in the U.S. without legal status or who become deportable because of certain criminal convictions.

Justice Department lawyers representing the Biden administration have argued that Texas had not shown that it was harmed by the moratorium and called the legal agreement the Trump administration signed with Texas “invalid” and “unenforceable.”

“The federal government has plenary power over the enforcement of federal immigration law and an outgoing administration cannot contract away that power for an incoming administration,” Justice Department lawyers wrote in a filing Sunday.

In his order Tuesday, Tipton, who was appointed to the federal bench by former President Donald Trump, said he believed Texas was likely to succeed in arguing that the deportation pause was “arbitrary and capricious” and contrary to immigration law.

Tipton said the Biden administration failed to “provide any concrete, reasonable justification” for the moratorium. A memo signed by Acting DHS Secretary David Pekoske last week said the deportation pause was needed to allow the department to review its immigration enforcement policies, surge resources to the U.S.-Mexico border to review asylum cases and implement COVID-19 mitigation protocols.

“DHS, however, never explains how the pause in removals helps accomplish these goals,” Tipton wrote in his order. “It remains unknown why a 100-day pause is needed given the allegedly ‘unique circumstances’ to which the January 20 Memorandum alludes.”

Tipton also concluded that the deportation pause could cause “imminent and irreparable harm” to Texas, saying the state’s social and educational services could be affected by the presence of more undocumented immigrants. He did not address the legality of the agreement the Trump administration signed with Texas, saying it raises issues “of such gravity and constitutional import that they require further development of the record and briefing.”

The order on Tuesday does not block the Biden administration from enforcing the rest of the provisions in Pekoske’s memo, which include new guidelines narrowing who can be arrested by immigration officers.

The Justice Department declined to comment on Tuesday’s court order, while DHS referred an inquiry to the White House.

“We’re confident that as the case proceeds, it will be clear that this measure was wholly appropriate in ordering a temporary pause to allow the agency to carefully review its policies, procedures, and enforcement priorities – while allowing for a greater focus on threats to public safety and national security,” the White House said in a statement to CBS News. 

The American Civil Liberties Union, which challenged many of Mr. Trump’s immigration policies, had filed an amicus brief over the weekend in support of the Biden administration, arguing that DHS has broad discretion when deciding to deport — or not deport — individuals.

Kate Huddleston, an attorney for the ACLU’s Texas chapter, said Tipton should not have allowed Texas’ lawsuit to proceed. 

“The administration’s pause on deportations is not only lawful but necessary to ensure that families are not separated and people are not returned to danger needlessly while the new administration reviews past actions,” Huddleston said.  



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