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Federal judge blocks the deportation pause

Infuriating, but possibly less than it appears.

Best mugshot ever

A federal judge in Texas temporarily blocked the Biden administration from moving forward with a 100-day pause on many deportations across the US, saying Tuesday that it was not adequately reasoned or explained to the public.

The temporary restraining order represents an initial setback for the Biden administration, which has vowed to reform agencies like Immigration and Customs Enforcement (ICE) by restricting who is arrested and deported.

“This is a frustrating loss for an administration that was trying to set a different tone than the chaos and rapid changes of the prior four years,” said Sarah Pierce, an analyst at the Migration Policy Institute. “The order makes it clear that the moratorium may face significant legal hurdles.”

Judge Drew Tipton, who was appointed by former president Donald Trump, ordered the Biden administration to immediately stop enforcing its moratorium on many deportations, which had gone into effect on Friday before Texas sued. The temporary restraining order is in effect for 14 days as the case proceeds.

On Jan. 20, the Biden administration issued a pause on deportations for many undocumented immigrants who have final orders of removal. The memo states that the 100-day pause applies to all noncitizens with final deportation orders except those who have engaged in a suspected act of terrorism, people not in the US before Nov. 1, 2020, or those who have voluntarily agreed to waive any right to remain in the US.

But Tipton said the memo issued by David Pekoske, acting secretary of the Department of Homeland Security, appeared likely to violate the Administrative Procedures Act and that it was not adequately reasoned or explained.

“Here, the January 20 Memorandum not only fails to consider potential policies more limited in scope and time, but it also fails to provide any concrete, reasonable justification for a 100-day pause on deportations,” he wrote, while adding that Texas had shown evidence it would suffer if Biden’s moratorium was not blocked.

Tipton said Texas had demonstrated “that it pays millions of dollars annually to provide social services and uncompensated healthcare expenses and other state-provided benefits to illegal aliens such as the Emergency Medicaid program, the Family Violence Program, and the Texas Children’s Health Insurance Program.”

The state claimed that those costs would rise if the moratorium continued.

But Pratheepan Gulasekaram, an immigration law professor at Santa Clara University Law School, said the decision appeared to be vulnerable to an appeal.

“Federal administrations can and should be able to set their own enforcement policy as long as it is not forbidden by federal law. This allows a state to stop the federal government from reassigning resources and personnel and deciding the optimal level of enforcement,” he said. “This is not the way our federalism in the constitution is structured. States don’t have veto ability.”

See here for the background. Slate’s Mark Joseph Stern, who notes that Judge Tipton admitted his own ignorance of immigration law in the ruling, goes into some detail.

There are several remarkable aspects of Tipton’s decision. First, it applies nationwide—even though conservative jurists and Republican politicians spent the last four years decrying nationwide injunctions as illicit and unlawful. Trump’s Department of Justice launched a campaign against these injunctions, complaining that they unconstitutionally interfered with executive power. Right-wing judges condemned them as lawless power-grabs that promote “gamesmanship and chaos.” Republican lawmakers proposed legislation bringing them to a heel. Intellectuals in the conservative legal movement accused “resistance judges” of using them to sabotage the president. Now, six days into Biden’s term, a conservative judge has issued a nationwide injunction at the behest of a Republican politician.

Second, it is extremely difficult to determine the harm that Biden’s memo inflicted on Texas—and, by extension, why the state has standing to bring this case at all. In his lawsuit, Paxton failed to identify any concrete harm to Texas that actually flows from the deportation pause. Instead, he rehashed general complaints about the state’s expenditures on immigrants eligible for deportation—using estimations from 2018—and asked the court to assume that Biden’s memo would raise these costs. Paxton offered zero evidence that this specific memo would raise costs to Texas. Tipton gave the state standing anyway.

Third, and most importantly, Tipton’s decision is utterly divorced from both the entire framework of federal law governing deportation and the removal system as it functions on the ground. The thrust of Tipton’s reasoning is that a federal statute says the government “shall remove” an immigrant who has been “ordered removed” within 90 days. But, as the Supreme Court recognized as recently as last June, federal law also gives DHS sweeping discretion to determine which immigrants to deport, and when. A slew of statutes and regulations recognize this authority and address immigrants who are not removed within 90 days, a clear signal that this deadline is not, in fact, an iron rule.

Moreover, the deportation process is complex and time-consuming: It involves not only legal appeals but also tedious pragmatic considerations, like how an immigrant will actually be transported out of the country. The government has to plan this transportation on a mass scale, and it does not have a travel agency at its disposal that can guarantee an international flight full of deported immigrants within 90 days or your money back.

In short, if immigration law meant what Tipton says it does, then every president has violated it every day of their term, including the one who appointed him. Luckily, it does not. And there is therefore a very good reason to doubt that Tipton’s order will cause many, if any, deportations. The judge blocked Biden’s general policy of non-enforcement—but he did not, and could not, force the government to actually ensure that every immigrant who is eligible for removal be deported within 90 days. Biden’s DHS can merely exercise its authority to pause deportations on an immigrant-by-immigrant basis by granting an administrative stay of removal. It can halt travel arrangements and cancel deportation flights. Biden’s memo might be on hold, but it is perfectly lawful for the government to freeze deportations under its existing discretionary powers.

Others noted that the order is pretty limited in scope:

Everyone’s favorite question of standing was also brought up. It was not clear as I was drafting this if the Biden administration was going to ask the judge to put his order on hold, or if they were just going to appeal directly; either way, things may change before this runs in the morning, or shortly thereafter. It’s important to remember that the point of this lawsuit first and foremost is Ken Paxton’s fundraising, which works to his advantage whether he wins or loses. Given that, he may as well lose, that’s all I’m saying. Daily Kos, the Chron, and the Trib have more.

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15 Comments

  1. Manny says:

    Great way to start a Wednesday, writing facts that contradict the fascist/racists that visit this site often.

    As an ex-president stated, the Supreme Court has made the decision let them enforce it.

  2. David Fagan says:

    The persistent and ever present Manny-Q.

  3. mollusk says:

    and so today’s food fight begins…

  4. David Fagan says:

    Mollusk,

    It is a microcosm representation of the whole. Can anyone have a decent conversation about issues without descending into calling people names and talking trash? May as well save your energy,

    Manny is Q

    And there’s no use reasoning with it because he’ll try to brainwash you with his accusations, don’t buy into it. You are not a fascist, you are not a racist.

  5. Manny says:

    Paxton described Biden’s deportation pause as “a seditious left-wing insurrection,”

  6. David Fagan says:

    Proving my point exactly, Mr. MannyQ

  7. Lobo says:

    PAXTON VERSUS THE WISDOM OF THE PLEBS

    Replying to
    @KenPaxtonTX
    You might want to consult Black’s Law Dictionary

    Reply to
    @KenPaxtonTX
    This person has a law degree, but either does not understand the meaning of “seditious” or of “insurrection” or actively misrepresents the meaning of these words. Either option reflects poorly on himself and on the office of Attorney General for the State of Texas

    Replying to
    @KenPaxtonTX
    The dictionary is free online. It can help you understand some of those big words you used incorrectly.

    Replying to
    @KenPaxtonTX
    I’ll give you a million dollars if you can explain the words sedition and insurrection in the context of a court proceeding, which you eventually will lose.

    Replying to
    @KenPaxtonTX
    Oh wow. So that’s the new strategy – call everything a sedition and insurrection so people are confused. Might work on the cult, but not the rest of America.

    Replying to
    @KenPaxtonTX
    Have someone bring you a dictionary so you can look up definitions for insurrection and sedition. Then look up bribery and abuse of power. Then look in a mirror.

    Replying to
    @KenPaxtonTX
    *This* was NOT a “seditious left-wing insurrection.” Words DO have meanings, you know! @MerriamWebster and @Dictionarycom can help you out perhaps

    Replying to
    @KenPaxtonTX
    As a veteran who served this nation and its Constitution for over 23 years (and actually a lifelong conservative), your politically motivated use of the words “seditious” and “insurrection” here, in the wake of what happened a few weeks ago, is unconscionable and appalling.

    Replying to
    @KenPaxtonTX
    An AG should know the definition of words like “sedition” and “insurrection”
    Your abuse of vocabulary shows a willful intent to lie to the public.
    When you understand that your intent was to lie, then it’s clear your “victory” was just the opposite.

    Replying to
    @KenPaxtonTX
    It’s like y’all learned a new vocabulary word and you’re trying your damndest to put it into a sentence.

    Replying to
    @KenPaxtonTX
    The way y’all try to equate every disagreement over policy is really sad. I’m sad for America. A group actually tried to undermine the democratic process and so now every disagreement over policy or state be federal authority is sedition? So sad. Really — very sad.

    Replying to
    @KenPaxtonTX
    Yep, a policy reversal is the same as storming our Capital and threatening to kill our government leadership

    Replying to
    @KenPaxtonTX
    You can always count on “conservatives” to project onto others what they themselves are doing. Your party willfully, knowingly, gleefully incited a deadly insurrection bc you’d rather live under a dictatorship than a democracy.

    Replying to
    @KenPaxtonTX
    Your an attorney general?!? Do you know the definition of sedition or insurrection? I am beginning to wonder about law school.

    Replying to
    @KenPaxtonTX
    Calm down, Sparky. You got a 14-day stay. Not exactly a stunning victory.

    Replying to
    @KenPaxtonTX
    the deportation freeze doesn’t fit the definition of sedition or insurrection at all and you haven’t won yet. It’s a TEMPORARY halt

    Replying to
    @KenPaxtonTX
    Wow, I hadn’t realized that several thousand violent people showed up at the Texas State Capitol, smashed windows, stole property, and called for the hanging of the legislature.
    How dare you misuse that term when people died on Jan 6 from a real one.

    Note: Author info omitted, for attribution, see AG’s twitter feeds.

  8. Manny says:

    The US Department of Homeland Security declared a nationwide terrorism alert Wednesday, citing the potential threat from domestic anti-government extremists opposed to Joe Biden as president.

    “Information suggests that some ideologically-motivated violent extremists with objections to the exercise of governmental authority and the presidential transition, as well as other perceived grievances fueled by false narratives, could continue to mobilize to incite or commit violence,” the department said.

    Great Patriots those Trump lovers.

    https://www.ndtv.com/world-news/us-issues-terror-alert-over-anti-government-extremists-2359018

  9. Lobo says:

    Re: “US Department of Homeland Security declared a nationwide terrorism alert”

    Manny: I understand that some talking heads (public intellectuals with wide audience) consider this highly significant, but what does such a *declaration* really add to the volatile political situation that we already know we are in? Does it change anything?

    Perhaps it has some wo/man power implications, and activates additional resources, like a disaster declaration at the local or state level. Or perhaps not.

    Take the COVID threat level on the Harris County “dial/gauge” icon as an example. It has been set to red for months. I don’t have a problem with that, but I am not sure it made much of a difference, except for the certain segment of the population: a segment that is receptive to good-sense advice from leaders who listen to scientists and tap expertise they recognize they themselves don’t possess, but don’t have the power to do much but engage in public communication and efforts to persuade.

    Impotence may not describe the federal law enforcement and surveillance apparatus, but what does the declaration really entail, and is what it entails desirable?

    Perhaps the domestic-terrorism declaration brings us closer to a “police state” except that the threat to be contained is actually embedded (at least somewhat) in existing “police state” institutions, with no clear demarcation between the policers and those at the receiving end of the official attention.

    To concretize the matter for didactic purposes: If Lobo is a fascist (as you say), and you are therefore an Anti-fascist (ie, Antifa adherent) by attacking him, shouldn’t both you and Lobo be flagged as putative extremists, and have their cell phones (if any) tracked and monitored, not to mention comments on OTK harvested in real time and run through AI programs for ongoing threat-assessment purposes?

    Bottom line: We should be alert not only to potential terrorists among us, but to the civil liberties implications of idea/ideology-driven and -focused crackdowns.

  10. Manny says:

    God gave us Google use it, Lobo.

  11. Lobo says:

    WANTED: STASI SNITCHES ?

    Thanks for the suggestion, Manny. This was your opp. to make a useful contribution on the topic, and you turned it down. — Too bad.

    IMO, this threat alert is a bunch of wishy-washy bla bla.

    The only arguably actionable item would be their encouragement to report some contributors to the comment section of this blog to “the authorities”.

    Let’s look at the prescription for the masses:

    How You Can Help

    We ask the public to report suspicious activity and threats of violence, including online activity, to local law enforcement, FBI Field Offices, or their local Fusion Center.
    Your choice can make a difference. Choose non-violent ways to make your voice heard and support friends and family in doing the same.
    Communities are strongest when they are not divided: Strengthen your community by standing together against violence.

    Be Prepared

    Avoiding large crowds, including protests, is safest due to ongoing pandemic conditions. However, if taking part in protests do so peacefully, safely, and wear masks.
    Be responsible for your personal safety. Make note of your surroundings and security personnel. Carry emergency contact as well as medical and other needs information with you.
    Connect, Plan, Train, and Report to prepare businesses & employees.

    Stay Informed

    Local, state and federal agencies will provide specific information about emerging threats as additional information is identified. The public is encouraged to listen to local law enforcement and public safety officials.

    To waste even more of the balance of your precious time as a sentient being capable of “making note of your surroundings”, look no further than here:

    https://www.dhs.gov/ntas/advisory/national-terrorism-advisory-system-bulletin-january-27-2021

  12. Manny says:

    CRAZY would also work;

    A former Republican Congressman warned that the “crazy” in the Republican party was not just coming from the fringe, but that it has permeated throughout the GOP.

    Former Congressman Denver Riggleman of West Virginia made the comments during an appearance on CNN.

    Mr Riggleman said the party’s direction since Donald Trump lost the 2020 election has become increasingly worrying to him.

    He pointed out that state Republican parties have embraced conspiracy theories that claim antifa were the actual culprits of the Capitol insurrection and continue to cling to Mr Trump’s false narrative that massive voter fraud cost him the election.

    “Crazy has started to metastasize at every single level in the GOP,” he said. “I’m seeing it here in Virginia. And I’ll tell both of you, I was in a town here in central Virginia and saw that there were Trump/Pence signs on the road. Someone had taken a black can of spray paint and painted out Pence’s name on some of these signs and put some very nasty words there [that] rhymed with, ‘Luck Pence.'”