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President Biden’s 100-Day Deportation Moratorium

By March 10, 2021No Comments

By Shriom Arza

On the afternoon of his inauguration, the Biden administration released a memorandum that included a bold plan on immigration and included a 100 day moratorium on deportations. Many are probably wondering, “what is a moratorium?” A moratorium puts a freeze or a pause on a specified activity, and in this case it would pause foreign nationals from being removed or “deported” from the United States.

President Biden’s immigration memo also unveiled guidelines that would greatly narrow/restrict who immigration and border agents should target for enforcement, focusing on criminals. He also proposed an immigration bill that would have created a process for the legalization of an estimated 11 million individuals living in the U.S. without status. However, on February 23rd, 2021, a federal judge indefinitely banned President Joseph Biden’s administration from enforcing an 100-day moratorium on most deportations, after the state of Texas filed suit in federal court to fight President Biden’s immigration orders. U.S. District Judge Drew Tipton issued a preliminary injunction for Texas, which argued that the moratorium violated federal law and risked imposing additional costs on the state. Judge Tipton was appointed by former President Trump who heavily opposed illegal immigration and immigration as a whole.

On January 26th, Judge Tipton issued a 14-day temporary restraining order, which was extended to include an extra two weeks to stop the moratorium from being enforced. He held that the memo from the Department of Homeland Security had failed to “consider potential policies more limited in scope and time” and also “provide any concrete, reasonable justification for a 100-day pause.” Judge Tipton also ruled that“[t]his preliminary injunction is granted on a nationwide basis and prohibits enforcement and implementation of the [100-day pause] in every place Defendants have jurisdiction to enforce and implement the January 20 Memorandum.” A temporary restraining order that was issued was to expire on February 23rd.

Judge Tipton did not block the entire DHS memo, ruling that: “[t]his Order does not prohibit the Government from carrying out or adhering to the January 20 Memorandum’s other sections,” including a DHS-wide review of policies and practices tied to immigration enforcement and interim civil enforcement guidelines. Judge Tipton’s ruling did not require deportations to resume at their previous accelerated pace during the Trump administration. Even without the moratorium in place, immigration agencies have great latitude in enforcing removals and processing cases. In the days following Judge Tipton’s ruling, authorities have deported 15 people to Jamaica and hundreds to Central America. The White House has also continued expelling immigrants under a separate process which had been used by Trump officials, who had used public-health law to deport individuals because of COVID-19.

 It is not clear if the Biden administration will appeal Judge Tipton’s ruling. This is considered a victory for Texas Attorney General Ken Paxton, who had filed the lawsuit against the federal government over the 100-day pause. Judge Tipton had held that Ken Paxton’s office had provided enough evidence to suggest that the 100-day deportation pause could threaten the state with financial harm, and that the process in which it was passed had violated administrative laws and procedures. “[T]he core failure of DHS lies not in the brevity of the January 20 Memorandum or the corresponding administrative record, but instead in its omission of a rational explanation grounded in the facts reviewed and the factors considered,” Tipton wrote. “This failure is fatal, as this defect essentially makes DHS’s determination to institute a 100-day pause on deportations an arbitrary and capricious choice.” When a judge rules that something was done in an “arbitrary and capricious” way, they are basically saying that the individual has not provided sufficient explanation and rationale for why they did that thing.

Civil Liberties Union attorney Kate Huddleston reacted angrily to the latest ruling, stating that, “Texas Attorney General Ken Paxton continues to … seek to force the Biden administration to follow the xenophobic policies of former President Trump. Allowing these deportations to continue means that families will be torn apart and that people who have the opportunity to seek relief in the United States will be returned to danger.” Cody Wofsy, a staff attorney with the ACLU’s Immigrants’ Rights Project, would go on to state that the group would be reviewing its options. “This ruling is legally wrong and will seriously harm families and communities around the country,” Wofsy said. “Texas’ suit is an attempt to deprive the Biden administration of a meaningful opportunity to review and assess immigration enforcement after years of living under lawless Trump policies.”

On February 20th, the Biden Administration outlined steps to reform the immigration system. They had stated that they would “develop a strategy to address irregular migration across the southern border and create a Humane asylum system,” which would begin by rolling back many of former Presidents Trump’s immigration policies. The President also put forward a 3 step plan to deal for safe, lawful, and orderly migration from the south. The three steps were:

  1. “The Administration will address the underlying causes of migration through a strategy to confront the instability, violence, and economic insecurity that currently drives migrants from their homes.”
  2. “The Administration will collaborate with regional partners, including foreign governments, international organizations, and nonprofits to shore up other countries’ capacity to provide protection and opportunities to asylum seekers and migrants closer to home.”
  3. “The Administration will ensure that Central American refugees and asylum seekers have access to legal avenues to the United States. The Secretary of Homeland Security is also directed to review the Migrant Protection Protocols (MPP) program.”

President Biden also stated that he was very committed to improving the asylum process and rescinding many orders from the previous Administration. We do not know when these orders will be put into place but with so much push back to the 100 day moratorium on deportations we can expect that these actions will take a while. The current Administration wants to make sure that any actions or orders they put forth are carefully crafted, so that they survive the legal challenges that are likely to be filed in conservative states. Additionally, some of the actions done by the previous Administration required bureaucratic/administrative processes to be put in place, and will require similar processes to remove them. If you have any questions, please feel free to contact the Law Office of Gian-Franco Melendez, LLC to speak with an experienced immigration attorney about your options.