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Federal courts have dismantled Biden’s immigration plan

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A U.S. District Court Judge last week issued a preliminary injunction against the Biden administration in a case filed by the states of Texas and Louisiana against the Department of Homeland Security in an attempt to force the administration to comply with the mandatory detention provisions in the Immigration and Nationality Act (INA), specifically sections 1226(c) (criminal aliens) and 1231(a)(2) (aliens subject to final deportation orders). 

These sections provide that DHS “shall” detain certain criminal aliens when they are released from police custody or incarceration, or during their removal periods if they are subject to a final deportation order. The states claim that DHS has issued memoranda that prohibit compliance with these provisions.

The administration’s response is that detention under these provisions is discretionary — in other words, that “shall” does not mean “must.”

But, of course — as the judge makes clear — it does.

This is just the latest major setback for the Biden administration’s immigration policy.

In a memorandum dated Jan. 20, 2021, the DHS Secretary ordered the ICE Director to conduct a review of DHS immigration enforcement policies and then issue interim operational guidelines that would limit enforcement actions to deportable aliens who fall within one of the following priority categories: 

  1. Aliens who are national security threats;
  2. Who are apprehended at the border or ports of entry while attempting unlawfully to enter the United States; or
  3. Who have been convicted of an “aggravated felony” as that term is defined by section 1101(a) (43) of the INA.

The detention provisions at issue in this Texas and Louisiana case cover some categories of criminal aliens that are not included in these priority categories.

The ICE director issued a memorandum on Feb. 18, 2021, that restricted a broad range of enforcement decisions to aliens in one of the priority categories. This included such things as deciding whom to stop, question, and arrest and whom to detain or release.

The first sentence in the judge’s decision is a quote from a 1996 Senate Judiciary Committee report addressing the problem of alien criminality in the United States:

“No matter how successful Congress might be in crafting a set of immigration laws that would — in theory — lead to the most long-term benefits to the American people, such benefits will not actually occur if those laws cannot be enforced.”

Biden’s immigration measures do further the objectives of his “blueprint for a fair, orderly, and humane immigration system,” which also unfortunately happens to impede Congress’s efforts to address the problem of criminality in the United States.

Does “shall” mean “must”?

DHS argues that the term, “shall,” in sections 1226(c) and 1231(a)(2) does not make those provisions mandatory.

The judge rejects that argument, finding that recent Supreme Court decisions and other precedents establish that “shall” means “must” in these sections.

For instance, the Supreme Court’s June 29, 2021, decision in Johnson v. Guzman Chavez applied sections 1226(c) and 1231(a)(2) as mandatory provisions.

DHS argues that the judge should disregard Guzman Chavez and the other precedents because the question of whether those sections are mandatory was not central to the holdings in those cases and therefore was just dictum.

The judge rejects that argument pointing out that Guzman Chavez’s treatment of sections 1226(c) and 1231(a)(2) as mandatory was central to its holding. The case’s key issue was whether those sections prohibited the release of certain aliens while they were petitioning for relief from removal.

Moreover, the judge notes that it is well established in his circuit that although dicta generally is not binding, Supreme Court dicta is another matter.

Whether Supreme Court dicta is binding is technical; the fact is the Supreme Court has been treating those sections as mandatory, so you don’t need a crystal ball to predict how they will rule if they have to render a decision.

Although the judge concludes there are precedents sufficient for holding that sections 1226(c) and 1231(a)(2) are mandatory, he goes on to do his own analysis of the issue.

Highlights from judge’s analysis

Section 1226 has two provisions for the apprehension and detention of aliens. Subsection (a), which applies to noncriminal aliens, uses the term “may,” whereas subsection (c), which applies to the detention of criminal aliens, uses the term “shall.”

Subsection (c) breaks it down even further: (c)(1) states that the government “shall” detain certain criminal aliens and (c)(2) provides that the government “may” release aliens detained under (c)(1) “only if” it is necessary to —

“provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General [DHS] that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding.”

It is apparent that Congress intended (c)(1) to be mandatory in the absence of the conditions specified in (c)(2).

Section 1231(a) outlines DHS’s discretion regarding the detention of aliens who are subject to a final removal order:  Subparagraph (a)(2) says:

“During the removal period [which is defined later as being 90 days], the Attorney General [DHS] shall detain the alien. Under no circumstance during the removal period shall the Attorney General [DHS] release an alien who has been found inadmissible under section 1182(a)(2) [Criminal and related grounds] or 1182(a)(3)(B) [Terrorist activities] of this title or deportable under section 1227(a)(2) [Criminal offenses] or 1227(a)(4)(B) [Security and related grounds] of this title.”

Congress made the mandatory nature of this provision apparent by saying, “Under no circumstances during the removal period” may DHS release an alien who is removable on the basis of a specified ground.

Accordingly, the judge granted a preliminary injunction restraining the Biden administration from implementing the parts of the memoranda that pertain to this case. The judge granted a stay of his order until noon next Monday, Aug. 30, to allow the government to appeal, but the judge’s well-reasoned order — based as it is on the Supreme Court’s own recent past actions — makes it clear, to me at least, an appeal will be an uphill battle.

The federal courts thus far have rejected Biden’s attempt to pause deportations for 100 days, his defense of the DACA program, his termination of the Remain in Mexico program, and now his attempt to end mandatory detention for criminal aliens.

At this point, there isn’t much left of the Biden plan.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at

Tags Biden immigration policy Deportation from the United States Illegal immigration to the United States Immigration and Nationality Act Immigration detention Immigration law Joe Biden

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