A federal appeals court on Wednesday allowed the Biden administration’s selective criteria on who should be deported to remain in effect, rejecting one of Texas’ challenges to the president’s immigration policies.
The administration’s victory may prove temporary if Texas or Louisiana successfully seek the intervention of the U.S. Supreme Court, which recently sided with Texas and other states to reinstate a key Trump administration policy that requires asylum-seekers to wait in Mexico for hearings in U.S. immigration court.
A three-judge panel of the 5th Circuit Court of Appeals reversed a decision last month by a federal judge in Corpus Christi, Texas, that declared the Biden administration’s interim enforcement priorities illegal. The administration prioritizes for deportation people who are deemed to be national security threats, who have serious criminal records or who have been picked up at the border.
The interim priorities, which are expected to be superseded by final guidance this month, adhere closely to former President Barack Obama’s directives and represent a sharp departure from those of Trump, who made everyone in the country illegally a priority for deportation. The court noted that there were 25,916 deportation arrests under the interim rules from February through July, which was 33% fewer than the 39,107 during the same period a year earlier, though arrests for people with “aggravated felonies” rose by about 2,000 during that time.
Circuit Judge Gregg Costa, an Obama appointee, wrote that the enforcement criteria are within the president’s authority, citing a “deep-rooted tradition of enforcement discretion when it comes to decisions that occur before detention, such as who should be subject to arrest, detainers, and removal proceedings.” He was joined by Judges Leslie Southwick, who was appointed by President George W. Bush, and James Graves, an Obama appointee.
The attorneys general for Texas and Louisiana and the Department of Homeland Security did not immediately respond to requests for comment.
Texas, Louisiana and seven other states are also challenging the Deferred Action for Childhood Arrivals policy, an Obama-era program under which hundreds of thousands who came to the United States as young children are shielded from deportation.