Judge temporarily blocks Biden’s plan to halt deportations

A federal judge in Texas temporarily blocked the Biden administration’s pause on deportations Tuesday, delivering a blow to one of the administration’s first immigration actions.

The early defeat, even if temporary, demonstrates the limits of President Joe Biden’s executive actions, which are expected to be challenged in court.

Tuesday’s order stems from a lawsuit filed by Texas Attorney General Ken Paxton challenging the 100-day pause on deportations, which took effect Friday. The complaint cited in part an agreement signed between the Department of Homeland Security and Texas in the waning days of the Trump presidency that required the department to consult the state before changing or modifying policies.

Judge Drew Tipton of the Southern District of Texas, however, said the temporary restraining order was appropriate under the Administrative Procedure Act. Tipton blocked the Biden administration from executing its deportation pause for 14 days.

Tipton, appointed by President Donald Trump, also found that Texas could be harmed if the moratorium were to continue. “In light of the foregoing, the Court finds that the threat of injury to Texas outweighs any potential harm to Defendants and the public interest is served and protected by the issuance of this TRO,” he wrote.

The moratorium has only been in place for five days.

The White House, Immigration and Customs Enforcement and the Department of Homeland Security did not immediately comment on the ruling.

Biden’s first days in office have been marked by the release of his ambitious immigration agenda, but the ruling has whiplashed immigration attorneys, who just days earlier were trying to make sense of the new memo.

“In a word: unbelievable. Despite the limited nature of the TRO grant (a two week pause of the pause), the decision is breathtakingly wrong,” said Jeremy McKinney, an immigration attorney based in North Carolina and the American Immigration Lawyers Association first vice president.

“There have been so many changes, and so many rules, and there’s also Covid-19 and as a way to kind of bring some order into this chaos that the Trump administration had wrought, I think a pause on removals would’ve been a good policy,” said Claudia Cubas, an immigration attorney based in Washington, DC.

The Biden moratorium covers most deportations but excludes individuals who came to the US after November 1, are suspected of terrorism or espionage or pose a danger to national security, have waived rights to remain in the US or who’ve been determined removable by the acting director, according to an agency memo.

Immediate lawsuit from Texas

Just as swiftly as the new memo took effect, so came a legal challenge from Paxton.

The Republican-led an attempt to void Biden’s Electoral College victory last month and will be a constant presence in federal court attempting to block the Biden administration’s policies on immigration.

During the Trump administration, Paxton also led a lawsuit challenging the Deferred Action for Childhood Arrivals program, which shields undocumented immigrants who came to the US as children from deportation. The case is ongoing. He is also at the head of the latest lawsuit at the Supreme Court challenging the Affordable Care Act.

The case over the deportation pause has moved quickly.

On Monday, Tipton asked the Biden administration to clarify its moratorium after Texas submitted a Fox News report to the court that cited an internal email instructing Immigration and Customs Enforcement officials to “release them all, immediately.”

The Justice Department submitted the correspondence, which originated in the Houston field office, on Monday afternoon. An official appears to notify the workforce about the moratorium announced the previous day, telling them to “stop all removals” as of midnight, but that email is later followed by another official calling for the directive to be retracted immediately.

“Please direct your supervisors to follow the memorandum issued. Operational guidance is being developed and will be issued in the coming days,” the email stated, adding: “Any questions on removals, releases, and/or arrests that we cannot determine fit squarely into the directive will be forwarded up through me to HQ for further discussion and decisions.”

The Justice Department also told the court that some undocumented immigrants with removal orders had been released from custody, but as part of separate litigation relating to Covid-19. DHS has discretion in who it releases, the Justice Department added.

“There are going to be times that the Department of Homeland Security uses its discretion in manners that Texas disagrees… Texas has different views about immigration policy than the current administration,” said DOJ attorney Adam Kirschner.

The Justice Department is likely to appeal the ruling.

This story has been updated with additional developments Tuesday.