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AILA Doc. No. 22111701 | Dated August 28, 2023
On June 23, 2023, the U.S. Supreme Court issued a decision on a challenge brought by Texas and Louisiana to the Biden Administration’s enforcement priorities guidance. This resource page will provide general information about the case, background information on the historical use of prosecutorial discretion, its importance as a tool for Immigration & Customs Enforcement (ICE), and AILA’s support for the Biden Administration’s efforts to use prosecutorial discretion as it conducts immigration enforcement. For practice-related information, members should review our Featured Issue Page: Representing Clients Before ICE.
In September 2021, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas issued enforcement priorities to the U.S. immigration enforcement workforce. As previously done by leaders of DHS and legacy Immigration & Naturalization Service (INS), Secretary Mayorkas outlined what factors made someone a priority for immigration enforcement. The policy took effect on November 29, 2021. Before these guidelines, DHS had issued a set of interim priorities, which were also challenged in court, but remained in effect until November 29, 2021.
Two federal lawsuits were filed challenging the September 2021 final enforcement priorities. Both lawsuits asked for preliminary injunctions to temporarily restrain the Biden Administration from relying on Secretary Mayorkas’ enforcement guidelines pending litigation. In the Ohio lawsuit, the Sixth Circuit stayed a lower court’s preliminary injunction. However, in the Texas case known as USA v. Texas, a district court went as far as to strike down the enforcement guidance. This led to the enforcement guidance being vacated as of June 25, 2022, pending appeal to the Supreme Court.
The Supreme Court was asked to determine whether the state plaintiffs could prevent the Biden Administration from adopting and implementing its own set of enforcement guidelines. This had implications for all noncitizens, regardless of whether they were in or outside of immigration detention. Ultimately, the Supreme Court found that Texas and Louisiana lacked Article III standing to challenge the enforcement guidelines that prioritized the arrest and removal of noncitizens who are suspected terrorists, a public safety threat, or who have recently unlawfully entered the country.
Cite as AILA Doc. No. 22111701.
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