Mayorkas Memo
- Through the issuance of three separate memos - the first issued directly after President Biden was sworn in - the administration has attempted to constrain the ability of U.S. immigration officers to investigate, question, arrest, detain, prosecute, and remove aliens in the United States (collectively known as "enforcement action").
- At issue in Texas is the latest memo, the one issued by DHS Secretary Alejandro Mayork as "Guidelines for the Enforcement of Civil Immigration Law" (Mayorkas memo), which requires immigration authorities to consider so-called "aggravating" and "mitigating" factors that "militate" in favor of or against (respectively) the taking of enforcement action against facially removable aliens.
- The statutory basis for almost all immigration enforcement is the Immigration and Nationality Act (INA), which has been amended more than 100 times since.
Judge Tipton found that the Biden administration was flouting statutory mandates
- He enjoined the administration from enforcing the provisions in the Pekoske and Tae Johnson memos that had restrained ICE officers from questioning, arresting, and detaining the aliens described in those sections of the INA.
The court stayed that injunction to give DOJ the opportunity to appeal, which it did to the U.S. Court of Appeals for the Fifth Circuit.
- On September 15, the panel issued its decision, concluding that, notwithstanding the mandatory language in the two INA provisions, Congress did not intend to limit immigration officials' prosecutorial discretion, that is, to decide who should face enforcement action in the first place".
- The panel concluded that ICE was only required under section 236(c) of the INA to detain "prisoners with qualifying convictions against whom ICE has lodged a detainer", and under section 241(a)(2) of this section to detain aliens subject to removal orders.
Full Fifth Circuit Review, and Dismissal
- The Mayorkas memo had been issued, and so the administration asked the circuit court to dismiss its appeal. The state plaintiffs agreed to dismissal, sending the case back to Judge Tipton.
- Supreme Court Opinion Barring Injunctions
- On June 13, the Supreme Court issued an opinion in Garland v. Flores Tejada, in which it held that a "court-stripping" provision in section 242(f)(1) of the INA barred lower courts from enjoining federal court actions taken under sections 231 to 244A of INA - which of course includes the sections at issue in Texas.
Issues Before the Court
- The Supreme Court will consider three questions presented in Texas: (1) Whether the states have standing to challenge the Mayorkas memo; (2) whether that memo violates sections 236(c) and 241(a) of the INA; and (3) whether section 241(f)(1) of INA allows the district court to vacate that memo under the APA.
The Mayorkas memo is being sought in Texas
- The plaintiffs in Texas are seeking an injunction barring DHS from adopting enforcement policies that gratuitously frustrate, and at times outright annul, statutory enforcement provisions.
- Even if the Supreme Court were to uphold the district court order vacating the memo, it would not fully remedy the injuries they allege (which are based on costs related to arresting and incarcerating criminal aliens, including recidivists), because the administration would be free to proceed with the same or similar non-enforcement practices.
A Lot on the Line
- There is a lot on the line, not only in Texas but in the coalition's request to intervene in that case.
- If the coalition is allowed to intervene, the justices will have to expand the issues it will consider - which could call the Biden administration's whole non-enforcement scheme into question.
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