National Security

Judge blocks DHS memo narrowing ICE deportation focus

Associated Press/Gregory Bull

A federal judge in Ohio partially blocked the Biden administration’s mandate to U.S Immigration and Customs Enforcement (ICE) officers to prioritize those with serious criminal histories and weigh the totality of someone’s circumstances before seeking to deport them.

The September memo, challenged by Arizona, Montana and Ohio, was one in a string of orders from the Department of Homeland Security (DHS) that encouraged ICE officers to narrow their focus while giving agents greater discretion to weigh factors like community and family ties, age and mental health, and time in the U.S. before making an arrest.

But Judge Michael Newman, a Trump appointee, limited the scope of the memo, siding with the states, which argued such directives must come from Congress, not the executive.

“At bottom, that is what this dispute is about: can the Executive displace clear congressional command in the name of resource allocation and enforcement goals? Here, the answer is no,” Newman wrote.

The decision from Newman blocks the memo as it relates to those facing mandatory detention due to a criminal record, as well as to those already detained by ICE who are facing deportation orders. But it leaves intact the rest of the directive.

The memo, penned by Homeland Security Secretary Alejandro Mayorkas, was a departure from the Trump-era emphasis on broad use of authority for deportation. 

It directed ICE agents to focus on those deemed a national security threat or a public safety threat due to serious criminal conduct.

“The majority of undocumented noncitizens who could be subject to removal — the majority of the more than 11 million people — have been contributing members of our communities for years,” Mayorkas said when the memo was signed.

“The fact that an individual is a removable noncitizen should not alone be the basis of an enforcement action against them,” he added. “We focus our resources because they are limited, and because of our dedication to doing justice.”

But Newman agreed with the argument from the trio of states that certain laws “impose a mandatory duty on DHS to detain certain noncitizens” and that the September memo’s guidance “neglects these commands and arbitrarily disregards the harms of nonenforcement.”

–Updated at 2:44 p.m.

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