A federal judge on Wednesday gave a tentative blessing to the Biden administration’s current limits on deportations, saying the government has the right to set priorities, even if that means some illegal immigrants face almost no risk of deportation.
Judge Susan R. Bolton said the Biden team may have narrowed the aperture for whom ICE targets for arrest or deportation, but it has not abdicated its responsibility altogether.
“The Government is not refusing to remove ‘other priority’ noncitizens; it is prioritizing the removal of some noncitizens over others,” wrote Judge Bolton, a Clinton appointee.
Her ruling came in a lawsuit brought by Arizona Attorney General Mark Brnovich, who’d argued the Biden administration’s new deportation rules, issued in February, are a dereliction of duty by U.S. Immigration and Customs Enforcement, which is charged with picking up and deporting people who lack permission to be in the U.S., or whose criminal activities have made them deportable.
Under the February rules, deemed “interim guidance,” migrants are priorities if they trigger national security concerns, have severe criminal records or are considered recent border jumpers. The guidance says other illegal immigrants who don’t meet one of those standards can be arrested or deported, but it’s heatedly debated how often that is likely to happen.
Arizona had argued that the law envisions illegal immigrants who are arrested being deported in 90 days, and said ICE’s decision under the new rules to cancel some deportation detainer requests is a violation of that duty.
Judge Bolton said in a brief order Wednesday that Congress never envisioned the 90-day deportation language as a mandate.
She said as a general matter, decisions about deportation are left to the executive branch and aren’t reviewable by courts, and Arizona and Montana, which joined the lawsuit, didn’t make a good enough case for why a judge should intervene now.
Judge Bolton did say Arizona could get one more chance to amend its lawsuit and refine its arguments, leaving the case alive.
Other states have also challenged the same deportation guidance.
A case is still pending in federal district court in Texas, while Florida’s challenge was rejected by a district court, and is now on appeal.
All of them could soon be moot.
Homeland Security Secretary Alejandro Mayorkas has promised final deportation rules which would supersede the February “interim” guidance. The Mayorkas rules were due in mid-May, then were supposed to be coming in early July, but the government this week announced they would now come in late August or September.
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