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LAW 360: Citizens United Asks High Court To Can ICE Curbs

Conservative nonprofit Citizens United has urged the U.S. Supreme Court to strike down Biden administration guidance narrowing deportations to national security threats and other “priority” immigrants, alleging the policy was part of a scheme to open the nation’s borders.

Citizens United, Citizens United Foundation and the Republican-oriented Presidential Coalition LLC pressed the high court to view the U.S. Department of Homeland Security’s September 2021 guidance in light of President Joe Biden’s other immigration policies, including his repeal of the national emergency declaration allowing defense funding to be used to construct a border wall and his termination of the “Remain in Mexico” policy requiring asylum-seekers to wait in Mexico while their claims for protection are processed. These policies show that the Biden administration is attempting to frustrate immigration enforcement and “throw” the borders open, they said.

“As with other Biden immigration ‘reforms,’ the Final Memorandum was implemented not because [DHS Secretary Alejandro] Mayorkas had scarce resources or different enforcement priorities from the prior administration, but because he and President Biden have been working hard to maximize open borders by minimizing enforcement of our nation’s immigration laws,” they said in an amici brief filed Oct. 25.

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The disputed guidance marks the Biden administration’s most recent effort to focus immigration arrests and deportations on recent border-crossers and immigrants deemed to pose a national security or public safety risk — a change from immigration enforcement under former President Donald Trump, who pushed to target nearly all unauthorized immigrants for removal. There are roughly 11 million unauthorized immigrants in the U.S., and DHS lacks the resources to go after all of them, Mayorkas has said.

The memo has been deeply criticized by Texas and Louisiana, which filed suit seeking to strike it down. U.S. District Judge Drew Tipton ultimately vacated the guidance in June, agreeing with the states that the administration had violated its obligations under the Immigration and Nationality Act’s Sections 1226(c) and 1231(a) to detain noncitizens with serious criminal convictions or final deportation orders.

The Fifth Circuit has blessed Judge Tipton’s ruling. But the Sixth Circuit, while reviewing a separate, similar legal challenge, upheld the guidance, saying it “merely” told employees what to prioritize.

In their Oct. 25 amici brief, the conservative organizations referred to Judge Tipton’s ruling, saying that the Immigration and Nationality Act imposed a “blanket rule” that DHS was violating. Nineteen Republican states, led by Arizona, also came out in support of Texas and Louisiana the same day.

The Arizona-led states coalition argued that the September 2021 memo was “functionally identical” to interim guidance released in February 2021 that they said led to a reduction in removals. If the Supreme Court allows the memo to go into effect, it would force them to cover the health care, public safety and education costs of a population that would otherwise be detained, the states said.

However, New York, California and more than a dozen other Democratic-led jurisdictions have defended the memo in their own filing to the Supreme Court, saying the broader context of the immigration act “makes clear” that Sections 1226(c) and 1231(a) don’t impose mandatory detention obligations. Interpreting those provisions otherwise would intrude on the Executive Branch’s broad discretion over immigration enforcement, they said.

They further argued that the Supreme Court risked letting immigration officers make “unprincipled” and “random” enforcement actions that could threaten the stability of the states’ immigrant communities if the justices nixed the guidelines.

“Immigrants add billions to federal, state, and local budgets by paying taxes and spending their income. Amici thus have a significant interest in supporting the federal government’s judgment to devote its limited immigration enforcement resources toward the subset of removable immigrants who pose a substantial threat to public safety in their communities,” they said.

Representatives for Citizens United and the federal government did not respond to requests for comment Monday.

Citizens United is represented in-house by Michael Boos and Daniel Jorjani and by William Olson, Jeremiah Morgan and Robert Olson of William J. Olson PC and Rick Boyer of the Integrity Law Firm.

The federal government is represented by Solicitor General Elizabeth B. Prelogar of the U.S. Department of Justice.

Louisiana is represented by Elizabeth B. Murrill and Joseph S. St. John of the Louisiana Department of Justice.

Texas is represented by Judd E. Stone, Lanora C. Pettit and Benjamin D. Wilson of the Office of the Texas Attorney General.

The case is U.S. et al. v. Texas et al., case number 22-58, in the U.S. Supreme Court.

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