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Federal Judge Extends Temporary Restraining Order Against Biden’s Deportation Pause


A federal judge in Texas extended a temporary restraining order (TRO) that he issued in favor of Texas Attorney General Ken Paxton’s challenge of President Joe Biden’s 100-day pause on deportations. U.S. District Judge Drew Tipton extended the nationwide TRO by two weeks, citing four reasons.

Recall: Biden issued a January 20 Memorandum pausing for 100 days “removals for certain noncitizens ordered deported to ensure we have a fair and effective immigration enforcement system focused on protecting national security, border security, and public safety.” The memo, as a footnote in Tipton’s prior ruling noted, spelled out who was excluded from the 100-day pause on deportations of “any noncitizen with a final order of removal”—namely, “any alien with a final removal order who”:

1. According to a written finding by the Director of ICE, has engaged in or is suspected of terrorism or espionage, or otherwise poses a danger to the national security of the United States; or
2. Was not physically present in the United States before November 1, 2020; or
3. Has voluntarily agreed to waive any rights to remain in the United States, provided that he or she has been made fully aware of the consequences of waiver and has been given a meaningful opportunity to access counsel prior to signing the waiver; or
4. For whom the Acting Director of ICE, following consultation with the General Counsel, makes an individualized determination that removal is required by law.

The judge, a Donald Trump appointee, issued a nationwide TRO, finding that there were issues “of such gravity and constitutional import that they require further development of the record and briefing prior to addressing the merits.”

In an ordered entered on Tuesday, Tipton said “good cause exists to extend the TRO for 14 days for four independent reasons”: 1) the judge needs more time to “more fully” develop the record; 2) existing deadlines that the court set for replies to a Texas motion for a preliminary injunction “fall outside” of the initial 14-day TRO period; 3) the court needs time to consider and rule on the motion for a preliminary injunction; “irreparable harm” could occur to Texas if there was no extension of the TRO.

“The Court may ultimately be persuaded by the Defendants’ arguments, but any harm they might incur between now and then does not outweigh the potential for irreparable harm to Texas,” the judge said.

Indicted AG Paxton, in seeking a TRO, argued that Biden’s memo was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”—violating the Administrative Procedure Act by failing to deport as required by 8 U.S.C. § 1231(a)(1)(A) (“That section provides, ‘when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days'”).

“On its first day in office, the Biden Administration cast aside congressionally enacted immigration laws and suspended the removal of illegal aliens whose removal is compelled by those very laws,” Paxton argued. “In doing so, it ignored basic constitutional principles and violated its written pledge to work cooperatively with the State of Texas to address shared immigration enforcement concerns. This unlawful reversal will cause Texas immediate and irreparable harm if it is not enjoined.”

Read both the latest and initial rulings below:

[Image via Alex Wong/Getty Images]

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Matt Naham is the Senior A.M. Editor of Law&Crime.