The Supreme Court Rejects Texas and Louisiana’s Immigration Challenge
The ruling scuttled the aspirations of Texas and Louisiana, both governed by Republicans who claimed that the government had violated immigration law and demanded the detention and deportation of all undocumented immigrants.
States Cannot Challenge Federal Immigration Decisions, Supreme Court Rules
The highest court of justice was categorical, 8 to 1, pointing out that the states do not have the “power” to challenge decisions of the federal government, especially when it comes to federal issues such as the application or enforcement of federal immigration law from the United States.
Deportation Priorities Take Full Effect Following Supreme Court Ruling
Following the ruling, the deportation priorities reiterated at the end of September 2022 take full effect.
Deportation Priority Guide Released by Department of Homeland Security
On September 30, 2022, the Secretary of the Department of Homeland Security (DHS), Alejandro Mayorkas, published a deportation priority guide to the directors of dependencies under his command. These are his keys.
Primary Key to Deportation Priorities
Being undocumented in the United States is not grounds for immediate deportation, but federal immigration agents have broad discretion to detain, arrest, and expel an undocumented immigrant, the document states.
Deportation Priorities Established by President Biden
The priorities are not new, they were established in February 2021 after President Biden reversed a series of regulations that were part of former President Donald Trump’s ‘zero tolerance’ policy. One of them established that the undocumented presence constituted a threat to the public and national security of the United States.
Controversy Over Terminology: Undocumented vs. Illegal Alien
Biden even went further. He not only annulled the priorities that the previous government had determined, but he stopped using the term illegal alien to refer to the undocumented and began calling them “non-citizens.”
- Threat to national security. A non-citizen involved in or suspected of terrorism or espionage, or related to terrorism or espionage-related activities, or who poses a danger to national security.
- Threat to public safety. A non-citizen who poses a real threat to public safety, usually due to a serious crime.
- Threat to border security. A non-citizen who poses a threat to border security.
Key Date: November 1, 2020
The Mayorkas memo adds that a non-citizen (alien) becomes a threat to border security if:
- You are detained at the border or port of entry while trying to enter the United States illegally.
- He is detained in the United States after having entered illegally after the November 1, 2020. This date is key to understanding the government’s deportation priorities.
While being undocumented is not an immediate or sole cause of removal from the United States, the 2022 memorandum recalls a fundamental principle governing the authority of federal immigration agents: “the exercise of prosecutorial discretion.”
Undocumented Population in the United States
The 2022 memo notes that there are 11 million undocumented or removable (deportable) people from the United States.
Official Recognition of Undocumented Non-Citizens
“In exercising our discretion, we are guided by the fact that most undocumented non-citizens, who could be subject to removal, have been contributing members of our communities for years,” the Mayorkas memo adds.
Factors Considered in Deportation Cases
Among the aggravating factors that justify deportation are considered, among others:
- Gravity of the crime, conviction, and sentence imposed.
- The nature and degree of damage caused by the offense.
- Use or threatened use of a firearm or dangerous weapon.
- Serious criminal record.
Mitigating Factors in Deportation Cases
However, there may also be factors that mitigate deportation priority. Between them:
- Age of the non-citizen (advanced or if it is a minor).
- Prolonged physical presence in the United States.
- A mental condition that may have contributed to the criminal conduct, or a physical condition or mental condition that requires care or treatment.
- Status of victim of a crime or victim, witness or party in a judicial process.
- The impact of deportation on the family in the United States, such as the loss of a provider or caregiver.
- Whether the non-citizen may be eligible for humanitarian protection or other types of immigration relief.
- Military or other public service of the non-citizen or his immediate family.
- Time elapsed since an infraction and evidence of rehabilitation.
- Whether the conviction was vacated or expunged.
- During the Trump administration, the mere fact of being accused of a crime constituted a deportation priority. Even if the case had not yet been sentenced.
Complexity of Exercising Prosecutorial Discretion
Mayorkas wrote in the memo that deciding how to exercise prosecutorial discretion “can be complicated and requires investigative work.”
Respecting Civil Rights and Liberties
The discretion of federal agents is also aimed at respecting the civil rights and liberties of non-citizens.
It specifies that race, religion, gender, sexual orientation or gender identity, national origin, or political associations will never be factors in the decision to take enforcement actions.
The Supreme Court has rejected a challenge from Texas and Louisiana, both governed by Republicans, who claimed that the federal government had violated immigration law and demanded the detention and deportation of all undocumented immigrants. The court ruled 8 to 1 that states do not have the power to challenge federal immigration decisions. Following the ruling, the deportation priorities implemented in September 2022 will take full effect. The Department of Homeland Security released a deportation priority guide, highlighting that being undocumented is not grounds for immediate deportation, but federal immigration agents have broad discretion to detain, arrest, and expel undocumented immigrants. These deportation priorities were established by President Biden in February 2021 and were part of a reversal of former President Trump’s ‘zero tolerance’ policy. Additionally, the terminology used to refer to undocumented immigrants has changed, with President Biden calling them “non-citizens.” The deportation priorities include threats to national security, public safety, and border security. The Mayorkas memo also states that a non-citizen becomes a threat to border security if they were detained at the border or port of entry while trying to enter illegally or if they were detained in the United States after November 1, 2020. While being undocumented is not an immediate or sole cause for removal, federal immigration agents have prosecutorial discretion in deportation cases. The memo recognizes that there are approximately 11 million undocumented or removable people in the United States, and emphasizes that many have been contributing members of their communities for years.
What are the deportation priorities implemented by President Biden in February 2021, and how are they different from the “zero tolerance” policy implemented by former President Trump?
In February 2021, President Biden implemented new deportation priorities that aimed to focus on targeting individuals who pose a national security threat, have recently crossed the border unlawfully, or have committed certain crimes within the United States. These priorities were outlined in a memo issued by the Department of Homeland Security.
The key differences between President Biden’s deportation priorities and former President Trump’s “zero tolerance” policy include:
1. Prioritization: Under the “zero tolerance” policy, all individuals who crossed the border unlawfully were subject to criminal prosecution, which often resulted in the separation of families. In contrast, President Biden’s priorities focus on individuals who pose security threats, recent border crossers, and those with criminal records or pending charges.
2. Family Separation: Former President Trump’s “zero tolerance” policy led to the separation of families as parents were prosecuted for illegal border crossings. President Biden, on the other hand, set forth a goal of reducing family separations by prioritizing alternatives to detention and exploring ways to address the needs of families seeking asylum.
3. Discretion for ICE Enforcement: President Biden’s memo instructed Immigration and Customs Enforcement (ICE) to exercise enforcement discretion by considering factors like length of residence in the United States, family ties, employment, and humanitarian reasons when deciding whether to initiate removal proceedings. The “zero tolerance” policy during the Trump administration did not provide such discretion.
Overall, President Biden’s deportation priorities aim to target individuals with serious criminal records and national security threats while avoiding a blanket enforcement approach that criminalizes all unauthorized border crossings. The focus has shifted toward more targeted enforcement and a prioritization of cases based on public safety considerations.