Federal judge in Dayton blocks ICE deportation priority rule

Ohio, Arizona and Montana sue Biden administration over immigration enforcement guidance.

Credit: Thomas Gnau

Credit: Thomas Gnau

A federal judge in Dayton partially blocked a priority policy that limits deportations to those who pose the greatest risk to public safety.

U.S. District Court Judge Michael J. Newman of Southern District of Ohio issued a preliminary injunction Tuesday that bars U.S. Immigration and Customs Enforcement officers from following some parts of the “permanent guidance” issued in September 2021 by Homeland Security Secretary Alejandro Mayorkas. It directed agents to evaluate a criminal noncitizen’s conviction, sentence, and a host of other aggravating and mitigating circumstances to determine whether to pursue detention and removal.

Ohio Attorney General Dave Yost, along with fellow Republican attorneys general from Arizona and Montana, sued the Biden administration in November 2021 over the policy.

“The states sue because they believe DHS skirted Congress’s immigration enforcement mandates when it issued a policy that prioritizes certain high-risk noncitizens for apprehension and removal,” Newman wrote in his ruling. “DHS contends that seemingly mandatory statutes must be read flexibly to permit efficient law enforcement.

“At bottom, that is what this dispute is about: can the Executive displace clear congressional command in the name of resource allocation and enforcement goals? Here, the answer is no,” Newman’s 79-page ruling stated.

The preliminary injunction issued by Newman, appointed by Trump, applies nationwide.

“It’s amazing that we had to go to court to get an order for DHS to do its job, but that’s what it’s come to with this lawless administration,” Ohio Attorney General Dave Yost stated in a release following the ruling.

DHS defended its guidance and said it has improved efficiency. For example, between February and August 2021, officers arrested 6,046 noncitizens convicted of aggravated felonies compared to 3,575 during the same period in 2020.

However, deportations from fiscal year 2021 were down by 68% from fiscal year 2020.

Deportations totaled 59,011 in 2021 compared to 185,884 in fiscal year 2020, according to the ICE annual report released earlier this month. The report also stated that ICE officers made 36,619 administrative arrests of those convicted last fiscal year, compared to 123,128 the year before the pandemic.

In his ruling, Newman said the permanent guidance is unlawful because Congress mandated that criminal noncitizens with certain convictions and those with final deportation orders be detained. Also, it allows enforcement agents to make removal decisions under a balancing test.

The states also were able to show they suffered costs based on the policy and that DHS did not consider recidivism in its guidelines.

Following Newman’s ruling, more illegal immigrants could face apprehension and deportation proceedings.

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