Texas Attorney General Ken Paxton
Texas and Louisiana sued the Biden administration in federal court on Tuesday over a series of recent enforcement directives the administration handed down to Immigration and Customs Enforcement (ICE) agents. Legal experts immediately noticed some problems with the effort. Chief among those defects are a misunderstanding of federal law and an apparent admission by Texas Attorney General Ken Paxton (R) that immigrants’ constitutional rights are being violated in his state.
The lawsuit, filed by the elsewhere-indicted Lone Star State’s AG, complains that late February guidance from Acting ICE Director Tae Johnson both expanded and diminished enforcement priorities (depending on various sets of rotating factors) and thus led ICE to stop detaining immigrants convicted of minor felony offenses.
The Biden administration’s guidance calls for ICE to detain immigrants convicted of “aggravated felonies” with the intent to initiate deportation proceedings. (“Aggravated felonies” involve a broad suite of federal crimes when applied to people who are not U.S. citizens.) The guidance stands in contrast to the prior two administrations of Donald Trump and Barack Obama who targeted all undocumented immigrants and those with “significant misdemeanor” offenses, respectively.
“The January 20 Memorandum and the February 18 Memorandum are unlawful because they violate 8 U.S.C. § 1226,” Paxton’s lawsuit claims. “This mandatory duty to take criminal aliens into custody applies to those completing their sentences for crimes relating to controlled substances, those involving moral turpitude, and others.”
Paxton, in effect, is suing because ICE is exercising discretion over which immigrants to target for deportation. He claims that Biden’s February directive was unlawful because it has resulted in ICE rescinding “several detainer requests” that were previously issued.
“President Biden’s outright refusal to enforce the law is exacerbating an unprecedented border crisis. By failing to take custody of criminal aliens and giving no explanation for this reckless policy change, the Biden Administration is demonstrating a blatant disregard for Texans’ and Americans’ safety,” the attorney general added in a statement.
Aaron Reichlin-Melnick, policy counsel at the American Immigration Council, noted a few severe defects with the reasoning of the Texas and Louisiana plaintiffs.
“You can’t sue a prosecutor for using their discretion not to prosecute someone — same goes for immigration,” he tweeted. “Imagine if Texas sued the Department of Justice for not raiding recreational dispensaries in California, since of course legal products make their way to Texas. Same thing.”
Executive branch discretion is a hallmark of the American constitutional system and deference to such interpretations in the specific context of immigration law — on the specific question of whether an agency can interpret “mandatory detention” as it sees fit — was recently upheld by a conservative plurality of the U.S. Supreme Court.
Even the lawsuit itself acknowledges such discretion exists.
“Paxton is here saying that it is illegal for the United States government to not issue detainers for people once they are released from jail or prison following a sentence after being convicted of a crime,” immigration attorney Diego J. Aranda Teixeira told Law&Crime. “However, at paragraph 2 [of the lawsuit], even Paxton concedes that it is optional for the federal government to ask for detainers to keep people under custody.”
The section of the lawsuit notes:
When the Texas Department of Criminal Justice (“TDCJ”) incarcerates an alien already convicted of a felony criminal offense, it informs U.S. Immigration and Customs Enforcement (“ICE”). If, pursuant to federal law, the alien should be removed from the United States when his sentence expires, ICE can send TDCJ a detainer request. Upon receiving such a request, TDCJ will hold an alien instead of releasing him into the community.
More than that, however, Texas and Louisiana appear to be holding immigrants in lieu of such detainer requests.
“[ICE] rescinded detainer requests for aliens convicted of [certain] offenses,” the lawsuit continues. “As a result, many convicted criminal aliens have been released to society after their sentences, contrary to Congress’s mandate that they be detained pending their removal from the United States. Of course, the States of Texas and Louisiana must do what they can to protect their citizens, so some of these criminal aliens have remained in state custody at the State’s expense.”
That is, the lawsuit appears to contain an admission that Texas authorities are violating immigrants’ constitutional rights by holding them past their prison sentences because they disagree with political choices made by the Biden administration about deportation priorities.
“My interpretation of [the above-cited passage] was that they were admitting to illegally holding people past the time their sentences had ended, but I’m open to a less flagrantly unconstitutional interpretation if they mean something else,” Reichlin-Melnick told Law&Crime. “I just can’t think of anything else that they might possibly mean.”
“[I]f they’re actually just deliberately holding people after their sentence is over in hopes ICE will take them, that would be flagrantly illegal,” he added. “Which is why I said I’m open to another meaning, since generally speaking state governments don’t brag about how illegal the stuff they’re doing is.”
That interpretation, however shocking, made the rounds of appellate and immigration Twitter on Tuesday.
law, meet power:
“we don’t like that ICE may not arrest & deport this person when we release from prison, so we’re just going to refuse to release them!” https://t.co/ClaTaSnOXq
— N th n – #FreeThemAll (@n_th_n_) April 6, 2021
Re: TX and LA lawsuit -when a person is released from prison that means our govt acknowledges they’ve fulfilled their obligations to society and are not a threat to the community. Mandatory ICE detention and removal after that point is a doubly unjust form of secondary punishment pic.twitter.com/60T6lGMZM8
— Joshua Leach (@UUSC_Policy) April 6, 2021
“It is unlawful for Texas or Louisiana to detain people without authorization based on a criminal sentence or a detainer, but they admit doing so,” Aranda Teixeira added.
The bizarre admissions made by Texas and Louisiana in the lawsuit appear to be premised on an inaccurate reading of federal law.
“Federal law requires Defendants to take custody of many criminal aliens, including those with final orders of removal, those convicted of drug offenses, and those convicted of crimes of moral turpitude,” the lawsuit claims. “By refusing to take these criminal aliens into custody, Defendants have disregarded non-discretionary legal duties.”
Several legal experts told Law&Crime that interpretation is incorrect.
“Just as criminal laws saying that the government ‘shall’ arrest people don’t override prosecutorial discretion, so too do immigration laws saying that ICE ‘shall’ detain people not impose a truly mandatory requirement on ICE to do so,” Reichlin-Melnick explained. “ICE always maintains the ultimate power to decide not to deport or detain an individual person.”
[image via Gabriel Aponte/Getty Images for Concordia Summit]
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