AUSTIN — The U.S. Supreme Court will hear oral arguments in an immigration policy case on Nov. 29 stemming from a Texas challenge.
In United States v. Texas, justices will discuss whether the Biden Administration’s revised immigration policy violates the Administrative Procedure Act.
Texas argues that the Biden Administration did not follow proper policy procedures when the U.S. Department of Homeland Security issued new guidance in September 2021.
The guidance directed immigration enforcement officials to prioritize the arrest and deportation of certain groups of people who entered the country illegally, including those who pose “a danger to national security,” those who pose a “threat to public safety, typically because of serious criminal conduct,” and those who pose “a threat to border security.” The guidance defines noncitizens as those who are apprehended at the border or who arrived in the United States after Nov. 1, 2020.
In attempting to vacate the guidance, attorneys on behalf of Texas argue that the guidance harms states and is “substantively and procedurally unlawful.”
In addition to the federal government overriding what Texas says are standard policy procedures when issuing guidance, it says the directive also inflicts “significant unrecoverable financial costs on the states, including healthcare, education, and correctional services.”
“Just as ‘there is always a public interest in prompt execution of removal orders,’ there is always a public interest in the detention of criminal aliens consistent with Congress’s mandates,” Texas said in its brief. “Such aliens’ non-detention ‘permits and prolongs a continuing violation of United States law.’ ”
The lower courts have sided with Texas finding that the policy was contrary to law because it “[conferred] discretion [on officers] to independently decide who will be detained and when — if ever.”
Additionally, the appellate court concluded the guidance violates the Immigration and Nationality Act, which requires “mandatory detention” of illegal entrants into the United States.
In a counter argument, the American Civil Liberties Union filed an amicus curiae brief on behalf of the guidance.
It stated that the document “merely guides discretion where it exists and does not address detention issues,” therefore it does not override any statutory mandates, as Texas argues.
The ACLU also argued that even if the court finds a violation in the guidance, it would only be a small section and does not constitute vacating the entire directive.
This is not the first time Texas has sued the Biden Administration over immigration policies. Earlier this year, Texas lost its case in preventing the Biden Administration from ending the controversial Migrant Protection Protocols, also known as “Remain in Mexico.”
In that case, Texas also argued that federal law requires the mandatory detention of illegal immigrants. SCOTUS ruled in the Biden Administration’s favor, granting it the legal authority to end MPP.
Arguments in the latest case are scheduled to begin at 9 a.m. on Nov. 29.