Expect Immigration Fireworks As SCOTUS Heads Into Its Final Month

 There's a certain irony in the fact that the lives of the citizens of a democratic republic can be drastically altered by the decisions of nine largely Ivy-League educated lawyers in Washington, D.C. Supreme Court decisions are now a fact of life so expect fireworks in the next month as the Court issues its final decisions before it recesses for the summer - including in Texas v. U.S., which will likely answer many of the questions surrounding the president's authority to not enforce the immigration laws.

The Pekoske memo limited DHS's civil immigration enforcement priorities to three groups: spies and terrorists; aliens who entered illegally on or after the arbitrary date of November 1, 2020; and incarcerated aliens convicted of "Aggravated felonies", but only the ones "Determined to pose a threat to public safety".

The restrictions in that memo limited immigration officers' ability not only to remove aliens who were not a priority, but even to stop and question them.

First, section 236(c) of the Immigration and Nationality Act requires ICE officers to detain and hold any alien who is released from criminal custody if the alien is seeking admission or entered illegally and is removable on any of the criminal grounds of inadmissibility, or if the alien entered legally and is removable on all but one of the criminal deportation grounds.

After an exhaustive analysis of those provisions, Judge Tipton concluded that the word "Shall" found in each "Means 'must,' imposing on the Government a duty to detain certain criminal aliens and those with final orders of removal when released and during the removal period, respectively."

On September 15, a three-judge panel of the Fifth Circuit issued a decision limiting the scope of that order, applying it only to two groups of aliens: criminals released from criminal confinement for whom ICE has issued a detainer, and aliens under final orders of removal.

While not as restrictive in its scope as the prior two Biden administration memos, the Mayorkas memo requires immigration authorities to consider so-called "Aggravating" and "Mitigating" factors that "Militate" in favor of or against the taking of enforcement action against facially removable aliens.

https://cis.org/Arthur/Expect-Immigration-Fireworks-SCOTUS-Heads-Its-Final-Month