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Texas Attorney General Ken Paxton on Tuesday sued the Biden administration over its new procedures for deporting undocumented immigrants who have been convicted of crimes and asked a federal judge to compel the Department of Homeland Security to take them into custody before they are released by local or state law enforcement.
At issue in the suit filed jointly with the state of Louisiana are detainer requests that the U.S. Department of Homeland Security sends to state and local law enforcement agencies. The requests inform the agencies that U.S. Immigration and Customs Enforcement intends to take custody of an undocumented person upon completion of their sentence. The detainer asks local law enforcement personnel to hold the person for up to 48 hours so they can be transferred to ICE’s custody and begin the deportation process.
Law enforcement agencies are not required by the federal government to comply with a detainer, though a 2017 Texas law mandates state and local authorities to honor such requests. Advocates have questioned the constitutionality of detainers, which ask authorities to hold people after they’ve completed their sentences. ICE has also erroneously issued detainers for U.S. citizens.
President Joe Biden’s acting homeland security secretary in January ordered a review of the agency’s immigration enforcement policies and released interim guidance that prioritized the deportation of people who posed a threat to national security, border security and public safety.
A memo released by ICE in February further clarified that guidance. It states that immigration officials should prioritize the deportation of people who have engaged in terrorism, unlawfully entered the U.S. after Nov. 1 or were convicted of an aggravated felony.
The interim guidance “does not require or prohibit the arrest, detention or removal of any noncitizen,” wrote Acting ICE Director Tae D. Johnson. But detainers for people who fall outside priority areas are subject to “advance review.”
That’s a shift from the Trump administration, when anyone in the country illegally was a priority target for deportation. ICE officials said the new guidance is necessary to allocate the agency’s limited resources to the most important cases.
Last month, the American Civil Liberties Union urged the Biden administration to end the detainer requests altogether, saying they insert local authorities into immigration enforcement processes, eroding trust between the police and immigrant communities.
In the suit, Paxton alleged that the Biden administration is “refusing to take custody” of immigrants with criminal records and allowing them to “roam free.” In February, the AP reported that ICE had dropped 26 detainer requests in Texas since the new directive took effect. Most people were convicted of drunk driving or drug charges, though ICE had reportedly misapplied the policy when it prepared to drop three requests for people who committed crimes that should’ve been prioritized. None of the three were ultimately released.
Paxton argues in the lawsuit that ICE has “rescinded dozens of detainer requests” that had been issued to the Texas Department of Criminal Justice and is failing to issue new ones for some people subject to deportation. He contends that the Biden administration’s guidance narrowly focuses on people convicted of aggravated felonies, such as murder, while neglecting people with drug offenses and those who committed crimes of “moral turpitude.” And he alleges that the changes to immigration enforcement would come at an enormous cost to Texas due to the services the state provides to undocumented immigrants. That argument is rebutted by a 2006 study by then-Texas Comptroller Susan Combs found that undocumented immigrants have a net positive financial impact to the state.
Paxton asks the court to declare the federal government’s guidance unlawful, prevent ICE from implementing the policy, and award Texas and Louisiana “costs of this action and reasonable attorney’s fees.”
A Department of Homeland Security spokesperson did not immediately return a request for comment.
The suit is the latest in a series of legal challenges Paxton has brought against the Biden administration since January. Paxton previously sued Biden over a 100-day deportation moratorium, alleging the moratorium is unconstitutional and violates an agreement between DSH and Texas. A federal judge in February effectively blocked the ban on deportations from taking effect.
Paxton has also sued over Biden’s decision to cancel permits for the Keystone XL pipeline and over new restrictions placed on drilling on public lands.