Texas Overrules Biden Administration Deportation Moratorium

Written by Taher Kameli & Chathan Vemuri

The first two weeks of the Biden presidency has seen a dramatic pause on many of the Trump administration’s most controversial immigration policies, from ending the Muslim ban to reversing the policy focusing immigration law enforcement on any undocumented person regardless of criminal status or lack thereof, to ending an emergency declaration to divert funds to proposed border wall.[1] Yet opposition to these reversals remains as strong as ever in those states where the former President still commands high levels of support. In Texas last week, one state attorney general was able to get legal sanction for the first major challenge to the Biden administration’s check on Trump-era immigration policies.[2]

On January 26, 2021, Judge Drew Tipton of the U.S. District Court for the Southern District of Texas overruled President Biden’s 100-day deportation moratorium.[3] In a court order imposing the requested 14-day temporary restraining order (TRO), Judge Tipton held that the Texas state government (who requested thee order under its Attorney General Ken Paxton) had demonstrated the requisite substantial risk of imminent and irreparable harm to the State of Texas.[4]

Specifically, the District Court found that the state would have to pay millions of dollars annually to provide various state-subsidized benefits to undocumented immigrants, be it social services, uncompensated healthcare expenses, the Emergency Medicaid program, the Family Violence Program, and the Texas Children’s Health Insurance Program, as well as educational costs.[5]

Furthermore, the District Court found that the expenses would increase because the January 20 Memorandum authorizing the moratorium would provide for alternatives to removal, thereby causing the state to anticipate suffering financial harm from which it could not recover by suing the federal government.[6] Finally, the Court found that the state was able to show imminent and irreparable harm by showing that thee refusal to remove aliens that were ordered to leave would “’encourage additional illegal immigration into Texas,’ thereby exacerbating its public service costs.”[7]

Moreover, the Southern District Court found that the State showed there was a substantial likelihood that it would prevail on the merits with regards to two claims: 1.) a violation of §706 of the Administrative Procedures Act (APA) because it violated §1231(a)(1)(A) of the Immigration and Nationality Act; and 2.) the US Government allegedly “’arbitrarily and capriciously’ departed from its previous policy without sufficient explanation.”[1] Under §706 of the APA, a reviewing court could set aside agency action found to be not in accordance with law and in excess of the requisite statutory authority.[2]

In this case, the State argued that the moratorium violated §1231(a)(1)(A), under which the state “shall remove the alien from the United States within a period of 90 days” when that alien is ordered removed and that issuing the moratorium exceeded the government’s statutory authority under the statute. [3] The District Court noted that the immigration law stated that “people with final orders of removal from the United States must be deported within 90 days” and held that the 100-day moratorium violated that provision by an abuse of the federal government’s broad discretion.[4]

Although this ruling is only temporary, it anticipates further legal challenges to the Biden administration’s efforts to undo the Trump administration’s immigration policies.[5] This is especially serious when one considers how much the judicial branch has been affected by the Trump administration’s various bench appointments, including Judge Tipton who made the ruling in question.[6]

Even more disturbing is how such decisions can proceed from misrepresented or distorted information such as an internal ICE email cited by Fox News as allegedly “calling for the mass release of detainees,” which government attorneys insist has been inaccurately reported.[7]

Already, President Biden has impressively dismantled many of his predecessor’s initiatives targeting legal and undocumented immigration, including the controversial Muslim travel ban targeting many majority-Muslim countries.[8] Often times, misinformation or misrepresentation plays a role in rallying up an outcry against the Biden administration’s efforts. Although the state of Texas claimed that the moratorium would affect their ability to enforce the laws, disadvantaging them by potentially preventing most deportations of those individuals with violent felony convictions[9], in reality, the Biden administration implemented the moratorium to internally review these policies, excluding those immigrants that arrived “after November 1, 2020, were suspected of committing acts of terrorism or espionage, or posed a threat to national security,” while covering most immigrants facing deportation.[1]

A simple internal review is not the same as a formal overturning of these deportations yet a simple administrative change in the name of due process has aroused a fierce backlash from conservative supporters of the former president who may use this to stifle any immigration reform coming from the White House. Indeed, it may be challenging for the Biden administration to tackle the most controversial aspect of the Trump presidency with this reality in tow.

Please fill out the form below or give us a call at +1 (312)-233-1000 if you have any questions about the Texas Southern District Court case and any implications it may have for you and/or anyone that you know.