States can't block Biden admin. shift on immigration enforcement

August 19, 2021. REUTERS/Gabrielle Crockett
  • Court says Biden administration can limit arrests, detention
  • Republican-led states failed to show harms
  • Judge had blocked policy pending outcome of lawsuit

(Reuters) - A U.S. appeals court on Tuesday said a federal judge should not have blocked the Biden administration from implementing guidance that focuses immigration enforcement on people convicted of serious crimes, rejecting a challenge by three Republican-led states.

A unanimous three-judge panel of the 6th U.S. Circuit Court of Appeals said a September memo shifting the Department of Homeland Security's priorities fell well within the agency's enforcement discretion, and Arizona, Ohio and Montana could not show that it would cause them any harm.

DHS declined to comment. The Ohio Attorney General's office, which is spearheading the challenge, did not immediately respond to a request for comment.

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The DHS memo instructed immigration officers to prioritize arresting and detaining individuals facing deportation who pose a threat to national security or have been convicted of aggravated felonies.

The states sued in November, alleging DHS could not pick and choose which types of convicted criminals to detain. They said that detaining fewer people who are in the U.S. illegally would threaten public safety and impose costs on states for law enforcement and public services.

U.S. District Judge Michael Newman in Dayton, Ohio in March found that the states were likely to win the lawsuit and blocked implementation of the memo pending the outcome of the case.

DHS appealed and the 6th Circuit in April stayed Newman's decision, saying the states were unlikely to prevail.

Meanwhile, a federal judge in Texas issued a separate injunction last month blocking implementation of the memo, in a lawsuit brought by Texas and Louisiana. DHS has appealed that ruling to the 5th Circuit.

In Tuesday's ruling, the 6th Circuit said Newman had ignored the broad discretion that federal law grants to DHS to permit the supervised release of non-citizens facing deportation.

And because the ability to enforce immigration laws is vested in the federal government, the states could not show that the DHS memo caused any direct harm to their own interests.

"Whatever costs the Guidance creates for the States downstream arise only from officials who exercise their discretion under the Guidance, confirming that those costs are not the Guidance’s direct or appreciable legal consequences," Circuit Judge Jeffrey Sutton wrote.

The panel included Circuit Judges Karen Moore and R. Guy Cole.

The case is Arizona v. Biden, 6th U.S. Circuit Court of Appeals, No. 22-3272.

For the states: Sylvia May Mailman of the Ohio Attorney General's office

For the Biden administration: Michael Shih of the U.S. Department of Justice

Read more:

U.S. judge blocks Biden administration policy narrowing immigration enforcement

U.S. immigration agents to more narrowly target migrants for deportation

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at