By Catherine Park
(THIS ARTICLE HAS BEEN UPDATED, SEE BELOW.* **)
Q. What are the implications of the June 10, 2022 federal district court order vacating the Department of Homeland Security’s (DHS’) legal memorandum establishing “Civil Immigration Enforcement Priorities” (“Mayorkas Memo”)?
A. For noncitizens seeking immigration benefits who have no criminal convictions or final orders of removal, the implications should be minimal. Immigration and Customs Enforcement (ICE) has announced that, while the Mayorkas Memo will not be relied upon for the time being, prosecutorial discretion is still being exercised for individual cases, in accordance with longstanding principles (which is not to say that prosecutorial discretion will be exercised, but that it could.)
A recent federal district court case, Texas v. United States, 2022 U.S. Dist. LEXIS 104521 (S.D. Tex. June 10, 2022), asserts that ICE is obligated under the Immigration and Nationality Act (“INA”) to detain noncitizens who have certain statutorily enumerated criminal convictions and/or final orders of removal. According to the argument of the states (Texas and Louisiana), if ICE declines to detain, such prosecutorial decisions must be made on a case-by-case basis, not as a matter of policy or on a class-wide basis.
The Texas v. United States decision contains an exhaustive review of what the states of Texas and Louisiana assert are damning statistics on DHS’ non-enforcement of mandatory detention provisions in the INA. The government disputes that the provisions are mandatory. The court order also excoriates the government by asserting that a mere database search would turn up the appropriate cases for detention and that the government has been derelict in using a more complicated process to determine which noncitizens to detain.
But the court ignores the statute and precedent decisions regarding what conduct qualifies as a “criminal conviction” for INA purposes. See, e.g., INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A); Rodriguez v. U.S. Dep’t of Homeland Sec., 629 F.3d 1223 (11th Cir. 2011); Matter of M-U-, 2 I. & N. Dec. 92 (B.I.A. 1944). For example, do juvenile adjudications count? What about no-contest pleas? What if no penalty is imposed, or the sentence is suspended, or a sentence is imposed of time served? What about payment of administrative court costs alone? What if there is a constitutional defect in the proceedings? What if there is a split among the Circuits as to whether the conduct is a crime of moral turpitude? What if the adjudication did not require a finding of guilt beyond a reasonable doubt? In other words, the enforcement decision is not as simple as conducting a database search—which the states assert is all that is needed—because the search might turn up conduct that is overinclusive or underinclusive under the INA.
More to the point, the states ignore the fact that their own state-court judicial processes released the noncitizens with criminal convictions into society, instead of incarcerating them. DHS’ enforcement actions are civil enforcement actions in nature. The states are misplacing blame, in that the states themselves refused to detain the noncitizens in many cases. Regarding noncitizens that were detained through state-court judicial processes, the states complain about the costs of prison facilities and providing medical care. But this indicates that overinclusive detention would be costly. The states’ complaint indicts their own suggested “remedy” of indiscriminate mandatory detention. Again, the states have only themselves to blame for not doing a targeted, incisive analysis that would reduce the numbers of needlessly detained noncitizens.
The Mayorkas Memo (and follow-up Doyle Memo), see blog post (April 13, 2022), Civil Immigration Enforcement Priorities, discuss the analytic process used by the government to evaluate enforcement decisions before the June 10, 2022 court order vacated the Mayorkas Memo (and perhaps the Doyle Memo as well). Although the Memos do not make this clear, the process could be like that used throughout the federal agencies to adjudicate waivers, which are expressly authorized under the INA, and to avoid mistakes, such as removing U.S. citizens from their own nation, which has occurred too often in the name of expedience. The analytic process also leaves room for the exercise of discretion in meritorious cases, such as noncitizens who served honorably in the U.S. military and their family members. See blog post (June 12, 2022), Can Undocumented Noncitizens Who Served Honorably in the U.S. Military Naturalize As U.S. Citizens?)
Similarly, the Doyle Memo’s discussion of the analysis that precedes enforcement for noncitizens with criminal convictions is integral to the INA, which codifies the availability of waivers for many criminal convictions (e.g., for commercialized vice, if the noncitizen was a victim under the Violence Against Women Act, 34 U.S.C. §§ 12291-12514). See INA § 212(h)(1)(C), 8 U.S.C. § 1182(h)(1)(C). The court’s order of June 10, 2022 in Texas v. United States makes no mention at all of waivers. Such expedient, but erroneous, review of the INA would compel mandatory detention of a victim of spousal abuse or a trafficked child without consideration of such noncitizens’ statutory waiver eligibility.
In Texas v. United States, the states had sought a nationwide injunction to force DHS to incarcerate the noncitizens—which their own state courts had refused to do indiscriminately. The federal district court judge declined to grant the injunction. Meanwhile, because the (vacated) Memos expressly carved out a “public safety” priority enforcement category to target noncitizens “convicted” of aggravated felony convictions under the INA, vacating the Memos forced ICE to abandon the “public safety” category, thereby rendering the nation less safe. And the states are violating the rights of noncitizens who could be statutorily eligible for waivers—many of whom are also eligible for military service (aged 18-26 and legally required to register with U.S. Selective Service, even if undocumented, according to the Military Selective Service Act, 50 U.S.C. § 3802(a)). The states are depriving the nation of soldiers who could serve in the armed forces, as determined by recruiters and division commanders.
Texas v. United States isn’t mostly concerned with immigration benefits for ordinary noncitizens but with the under-utilization of prison beds for incarcerated noncitizens, which the states assert indicates lax enforcement of the detention provisions of INA for noncitizens with final orders of removal and/or a history of “criminal convictions” (as defined in both an over- and under-inclusive manner under the INA). What is the real complaint of the states in the case? Their own state-court judicial processes have declined to take the noncitizens into custody, and it’s too expensive to take all noncitizens who have criminal convictions into custody indiscriminately, and so they sought a nationwide injunction from the federal district court to force DHS to do what their own state courts refused to do and/or could not afford to do. (As discussed above, they did not get the injunction, but they did make the nation less safe).
To conclude, here is an excerpt from the Military Selective Service Act:
(a) Except as otherwise provided in this title, it shall be the duty of every male citizen of the United States, and every other male person residing in the United States, who, on the day or days fixed for the first or any subsequent registration, is between the ages of eighteen and twenty-six, to present himself for and submit to registration at such time or times and place or places, and in such manner, as shall be determined by proclamation of the President and by rules and regulations prescribed hereunder. The provisions of this section shall not be applicable to any alien lawfully admitted to the United States as a nonimmigrant under section 101(a)(15) of the Immigration and Nationality Act, as amended (66 Stat. 163; 8 U.S.C. 1101), for so long as he continues to maintain a lawful nonimmigrant status in the United States.
50 U.S.C. § 3802(a).
“Clearly, this means that any illegal or undocumented alien must register for the draft.” This is according to an unnamed Assistant Professor in the Department of Law at West Point. Source: When Your Client Fights for Uncle Sam: “No Card” Soldiers and Expedited Citizenship, 8 Bender’s Immigration Bulletin 1889, n.21 (2003).
*UPDATE July 6, 2022: The vacatur was affirmed by the U.S. Court of Appeals for the Fifth Circuit. See 2022 U.S. App. LEXIS 18687. In the Sixth Circuit, however, a nearly identical complaint filed by the states of Arizona, Montana, and Ohio yielded a vastly different result, in the case of Arizona, et al. v. Biden, 2022 U.S. App. LEXIS 18426 (July 5, 2022). The U.S. Court of Appeals for the Sixth Circuit vacated a nationwide injunction. The Fifth Circuit Court in the Texas case distinguished its case from the Sixth Circuit case on the factual findings–which indicates that the Fifth Circuit decision might not be defensible outside of Texas and Louisiana.
** UPDATE July 8, 2022: Petitioners (the United States of America and federal agencies and their leadership), filed an application for a stay of the Fifth Circuit’s judgment pending disposition of a petition for writ of certiorari at the U.S. Supreme Court. Because the Secretary of the Department of Homeland Security has statutory mandates to “[e]stablish national immigration enforcement policies and priorities,” under 6 U.S.C. § 202(5) and 8 U.S.C. § 1103(a)(1) and (2), the states have an uphill battle in challenging the Civil Immigration Enforcement Priorities Memo.
DISCLAIMER: The opinions expressed herein are for informational purposes only and might not be applicable to your case or circumstances. If you need legal advice about a specific matter, consult an attorney.