Court lifts block on Biden admin. immigration enforcement memo

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A Department of Homeland Security police officer mans a barricade during a bomb threat near the U.S. Capitol in Washington, U.S., August 19, 2021. REUTERS/Gabrielle Crockett

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  • Court revives DHS guidance blocked by judge pending appeal
  • Memo directed detention of people convicted of serious crimes
  • Judge questioned courts' powers to issue nationwide injunctions

April 13 (Reuters) - A U.S. appeals court has cleared the way for the Biden administration to implement guidance focusing immigration enforcement on people convicted of serious crimes while it appeals a judge's order that had blocked the policy nationwide.

A three-judge panel of the 6th U.S. Circuit Court of Appeals said on Tuesday that Ohio, Arizona and Montana were unlikely to show that the September memo from the U.S. Department of Homeland Security violated federal immigration law, and their claims of potential harm to states were speculative.

The panel stayed a nationwide injunction that U.S. District Judge Michael Newman in Dayton, Ohio, issued in March, pending an appeal by DHS. Newman said federal law broadly requires DHS to detain individuals convicted of crimes while in the U.S. illegally.

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Circuit Judge Jeffrey Sutton in a separate concurring opinion went even further, saying Newman likely lacked the authority to issue a nationwide injunction rather than one that only applied to the states who brought the challenge.

DHS did not immediately respond to a request for comment. Nor did the Ohio Attorney General's office, which is spearheading the challenge.

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 in a November complaint claimed 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.

Newman, in issuing the injunction last month, agreed and rejected a claim by DHS that the states lacked standing to sue over a policy choice that did not create any new rules or regulations.

On Tuesday, 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.

Sutton in his concurrence joined a growing chorus of federal judges, including Supreme Court Justices Clarence Thomas and Neil Gorsuch, to question the practice of blocking federal immigration policies on a nationwide basis.

"Left unchecked, such nationwide injunctions have become a springing easement on the customary deliberative process for dealing with issues of national importance," 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

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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