DAYTON, Ohio (CN) — The states of Arizona, Montana and Ohio won a preliminary injunction on Tuesday enjoining a Biden administration immigration policy that narrows the Department of Homeland Security's deportation focus to immigrants deemed to be dangerous.
The guidance, initially instituted on an interim basis by President Joe Biden in January 2021, instructed DHS officials and officers of Immigration and Customs Enforcement, or ICE, to "focus their civil immigration enforcement efforts on noncitizens who present a threat to national or border security or public safety."
Texas immediately challenged the guidance in federal court and eventually won an injunction to prevent its enforcement, although that injunction was stayed by a ruling from a panel of appeals court judges.
While its temporary guidelines were being litigated, DHS made several changes and eventually passed permanent guidance for prioritized removal in September 2021.
It was this permanent rule that prompted the lawsuit by Arizona, Montana and Ohio, which was filed in Dayton federal court and assigned to U.S. District Judge Michael Newman, [a member of the Federalist Society and an appointee of Donald Trump].
The rule instructs immigration officials to conduct extensive analysis of an illegal immigrant's criminal history, mental and physical health, length of time in the country and various other factors before making a removal determination.
The states claimed this type of discretionary "balancing test" exceeded the scope of authority granted to DHS and ICE, and causes extensive harm by allowing more dangerous illegal immigrants within their borders.
DHS argued the states' financial harm is speculative at best and that its guidance ensures the most dangerous criminals will be removed from the country.
Newman sided with the states Tuesday, citing evidence of increased costs for Arizona that stemmed directly from a decrease in removal rates that required the state to either maintain custody of the immigrants or monitor them upon their release from prison.
In his analysis of the guidance against the backdrop of federal immigration law, Newman emphasized the federal government looks to inject flexibility into statutory language where there is none.
"Noncitizens with final removal orders," he wrote, "especially those meeting the criminal alien definition, must be detained during the removal period. Congress left no flexibility for DHS to release some noncitizens during the removal period."
The judge called the guidance "an end-run around" immigration law that requires immigrants who commit aggravated felonies to be detained and removed from the country within 90 days.
"The permanent guidance allows noncitizens to be released on removal-period and post-removal bond based on factors Congress did not intend DHS to consider and in contrast to DHS's own regulations," he said.
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