Justices asked to block Alejandro Mayorkas deportation policy


The Supreme Court grappled Tuesday with states’ ability to challenge the Biden administration’s immigration policies, and the courts’ ability to referee those disputes, in a case over Homeland Security Secretary Alejandro Mayorkas’s non-deportation policy.

Texas has challenged Mr. Mayorkas’s rules, saying it has left the state to deal with more illegal immigrants, including serious criminals, who have been released by the administration.

The state won in the lower courts, but the justices were more skeptical, saying there just aren’t enough deportation officers looking for illegal immigrants with serious criminal records, nor enough bed space to hold them.

“It is impossible for the executive to do what you want them to do,” Chief Justice John G. Roberts Jr. told Texas Solicitor General Judd E. Stone II.

Mr. Mayorkas last year issued guidelines to immigration agents and officers, telling them that merely being in the country illegally is no longer a reason to be deported. He ordered officers to instead evaluate multiple factors before deciding to arrest or deport someone.

Arrests and deportations dropped, and Texas said the government orchestrated the release of immigrants with criminal records who would normally have been deported, citing Mr. Mayorkas’s policy as the reason.

The state said Mr. Mayorkas’s policy violates immigration law that makes detention of some criminal illegal immigrants mandatory. 

Homeland Security’s numbers show arrests and deportations inside the U.S. have plummeted under President Biden.

Justice Sonia Sotomayor suggested Texas should be happy with the way the administration has handled things. She said Mr. Biden was faced with a choice about whether to focus on illegal immigrants already here or the record surge of new ones arriving, and it has focused on the latter.

U.S. Solicitor General Elizabeth Prelogar offered another defense, saying if the rules work as Mr. Mayorkas intended, it wouldn’t mean reducing total enforcement but rather changing the specific people that see enforcement.

“There is no reason to conclude that is actually going to lead to less enforcement against individuals overall,” Ms. Prelogar said.

She blamed the pandemic for the drop that happened under Mr. Biden.

But ICE data shows serious drops even between 2020 and 2021 when 2020 included the depths of the early days of the pandemic when enforcement all but ceased.

Major questions in Tuesday’s case are whether Texas has standing to sue and whether courts have the power to erase Mr. Mayorkas’s guidelines.

Ms. Prelogar said the state doesn’t have a provable interest in demanding the government deport people the law says it is supposed to deport.

But Chief Justice Roberts chided her for that argument, saying the court just four months ago — in another immigration case brought by Texas against the administration — had found Texas did have standing.

“I would have thought you’d have a little more concern about an opinion of ours that’s four months old,” he said.

He also reacted with shock at Ms. Prelogar’s suggestion that the courts can’t vacate administrative action over violations of the Administrative Procedure Act.

“Wow,” the chief justice said. He said the Supreme Court has upheld decisions vacating agency actions “over and over and over again.”

Justice Brett M. Kavanaugh called her position “astonishing” and “a pretty extreme argument.”

Ms. Prelogar was not deterred. “I don’t think it’s ever too late for this court to give the statute its proper construction,” she said.

But Justice Elena Kagan said things have gotten out of control with states challenging federal immigration policies and judges rushing in to issue rulings against the president. She said it happened in previous administrations too.

“We’re creating a system where a combination of states and courts can bring immigration policy to a dead halt,” she said.

Indeed, that’s what happened repeatedly in the Trump administration, when Democrat-led states sued to stop President Trump’s plans and won rulings in lower courts.

It also happened to several major Biden policies, including the Mayorkas deportation guidelines, which remain on hold while the case proceeds through the courts.

Tuesday’s case is United States v. Texas. A ruling is expected before the court’s term ends in June.

Immigrant-rights advocates were hoping for the administration to prevail. They viewed Mr. Mayorkas’s policy as another piece of a national sanctuary policy.

In the lower courts, Texas had presented evidence that Homeland Security was allowing serious criminals to go free — people who had originally been targets for deportation but who had their “detainer” requests canceled under Mr. Mayorkas’s rules.

Among them was Heriberto Fuerte-Padilla, an illegal immigrant who was driving drunk in 2020 when he smashed into the car driven by a Texas teenager, killing her. He tried to flee the scene, but police caught up with him.

Federal officials told Texas he no longer qualified as a deportation target.

Illegal immigrants who pleaded guilty to felony evading arrest or had drug, drunk-driving or domestic assault convictions also had detainers canceled, Texas said.


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