States battle Biden administration in court for failing to deport criminal illegal aliens

Sixteen states coalesce behind lawsuit filed by Texas, Louisiana claiming states "continue to suffer ongoing irreparable harm caused" by the federal government's "unlawful actions."
Texas Attorney General Ken Paxton

With the federal government declining to enforce immigration laws passed by Congress and illegal immigrants swarming across the southern border in record numbers, attorneys general from 16 states have formed a coalition in support of a lawsuit brought by Texas and Louisiana against the Biden administration for not deporting criminal illegal aliens. 

After the U.S. District Court for the Southern District of Texas ruled in favor of Texas and Louisiana, the Biden administration appealed to the Fifth Circuit, and it requested that the U.S. Supreme Court stay the lower court's ruling, which the high court denied

The case is pending before the Fifth Circuit, prompting the attorneys general to file an amicus brief. They argue their states "continue to suffer ongoing irreparable harm caused" by the federal government's "unlawful actions," according to the brief.

In January, the Department of Homeland Security issued guidance revising deportation policies and reducing enforcement priorities. In February, another directive issued by Immigration and Customs Enforcement prioritized deportation only for those who pose a national security threat. ICE agents were no longer to deport those convicted for "drug-based crimes (less serious offenses), simple assault, DUI, money laundering, property crimes, fraud, tax crimes, solicitation, or charges without convictions," acting ICE Director Tae Johnson instructed senior officials in an email in early February, according to the Washington Post.

The changes were expected to reduce deportations by 80%, according to Law Enforcement Today. In 2020, ICE officers arrested 93,000 individuals, with more than 374,000 criminal convictions or pending charges on their records. A Washington Post analysis drawing on ICE statistics suggested that only 10-20% of those arrested "appear to be the kind of aggravated felony convictions that would make them a priority under Biden's rules."

Additionally, over a 10-month period (which includes two months of the previous administration), Border Patrol agents arrested 8,691 known criminal illegal aliens who committed 12,685 crimes in the U.S., including repeat sex offenders, according to federal data. These arrests exclude those made by state law enforcement agencies.

The Biden administration's "brazen defiance of legal requirements underscores the need for this Court to act quickly and forcefully to break the Administration's escalating pattern of contempt for the rule of law," the attorneys general argue. "That disrespect is apparent both in this case, and is also particularly apparent from its recent unlawful extension of the eviction moratorium and refusal to abide by legal obligations to consider impacts on States and local governments."

While Texas and Louisiana are battling the federal government in the Fifth Circuit, Arizona, Florida, and Montana are litigating similar claims in the Ninth and Eleventh Circuits.

In a separate case, a coalition of 20 attorneys general have asked the U.S. Department of Justice to appeal a Nevada District Court's decision that decriminalizes the illegal reentry of deported illegal aliens.

In United States v. Carrillo-Lopez, the Nevada District Court struck down a federal immigration statute, 8 U.S.C. § 1326 — a law criminalizing the illegal reentry of illegal aliens who have previously been removed from the United States — as unconstitutional. 

Led by Arizona Attorney General Mark Brnovich and Ohio Attorney General Dave Yost, the 20 attorneys general sent a letter in late August to U.S. Attorney General Merrick Garland asking him to state whether or not the DOJ plans to appeal the court's decision.

Garland recently filed a notice of appeal, allowing the DOJ to defend the law upon appeal.

However, "given this administration's habit of policymaking through the expedient of strategic surrender, the states have reason to fear," the attorneys general wrote. They asked Garland to "follow through" and defend the law before the Ninth Circuit and, if necessary, the U.S. Supreme Court. If the DOJ decides not to do so, they requested to be informed by Friday, Sept. 17 so that they can take appropriate legal action.

At issue is Section 1326 of the Immigration and Nationality Act of 1952, which requires all non-U.S. citizens regardless of their race or country of origin to enter the U.S. lawfully. 

Judge Du ruled that the law discriminates against "Latinx persons" because most people reentering the U.S. illegally are Mexican nationals, he reasoned. Du argued the law "has an impermissible disparate impact on Mexicans" related to immigration quotas. But the quotas actually "prioritize Mexican immigration," the attorneys general argue, noting that there are more legal permanent residents living in the U.S. from Mexico than from any other country.

"The judge's ruling was a shocking departure from both the long-understood intent of Congress and of prior judicial precedents, and if left unchallenged, would exacerbate the unsustainable situation at our southern border and further weaken law enforcement's ability to keep Americans safe," Texas Attorney General Ken Paxton said in a statement. "States are fed up with having to defend federal law. It's time for this administration to do their job and put Americans first."

In July, Garland issued a ruling allowing immigration judges to postpone deportation cases while other rulings in related proceedings were pending. Postponing deportation cases was eliminated under the Trump administration.

Garland has not yet replied to the letter from the 20 attorneys general. If they do not hear back from him by Sept. 17, they are likely to sue.

Secretary of Homeland Security Alejandro Mayorkas recently acknowledged that the Department of Homeland Security has lost control of the border, lamenting that the current situation is "unsustainable," that it "cannot continue," that the system is getting close to "breaking," and that "we're going to lose."