16 Sep 2021
NIPNLG Explainer: FIFTH CIRCUIT STAYS LOWER COURT ORDER, INTERIM ENFORCEMENT GUIDELINES REMAIN IN EFFECT
"Yesterday the Fifth Circuit stayed a district court order that would have halted much of the Biden Administration’s interim enforcement priorities. Though the Fifth Circuit left narrow portions of the order in place, its decision represents a significant blow to the efforts of anti-immigrant state governments to block the Biden Administration’s efforts to set guidelines on the exercise of discretion in immigration enforcement and detention. ... Some important clarifications are needed here: First, the Fifth Circuit left Judge Tipton’s order in place only insofar as it restrained the Biden Administration from using the Priorities Memos to guide the discretion of immigration officials in deciding whether to release two specific categories of immigrants: (1) those subject to the mandatory provision under 8 U.S.C. §§ 1226(c)(1) against whom immigration officials have issued a detainer and (2) those with final removal orders and subject to mandatory detention under § 1231(a)(2). Order at 7–8. All other portions of the Priorities Memos remain in place. Second, as to mandatory pre-final-order detention, Judge Tipton’s order now extends only to the decision of whether to detain individuals who are both subject to § 1226(c)(1) and against whom ICE has separately decided to lodge an immigration detainer. See Order at 7–8 (holding that the United States is likely to succeed on “the core foci of the interim enforcement priorities–immigration officials’ ability to prioritize who is subject to investigative and enforcement action in the first place.”). Thus, immigration officials are no longer enjoined from relying on the Priorities Memos to determine whether to initiate enforcement actions in the first place, including whether to issue a detainer. Third, as to post-final-order detention, Judge Tipton’s order now extends only to those individuals who are subject to detention under § 1231(a)(1)(A) during the 90-day removal period. See Order at 7 (recognizing that, after the 90-day removal period, detention is no longer mandatory and is governed by “other rules allowing for release under certain conditions.”). Immigration officials may still apply the Priorities Memos in deciding whether to release an individual after the 90-day removal period. Fourth, immigration officials still retain the authority to make individualized determinations of whether to detain those noncitizens falling in those narrow provisions of Judge Tipton’s order that remain in place. The effect of Judge Tipton’s order, where it still applies, is only to enjoin the specific priorities laid out in the January 20 and February 18 Priorities Memos. See Tipton Order at 158–59. It does not prevent immigration officials from exercising individualized discretion to release people who are detained. It also does not prevent immigration officials from exercising their discretion in determining whether to release detained immigrants in compliance with other court orders, such as Fraihat, et al. v. U.S. Immigration and Customs Enforcement, et al., Case No. 5:19-cv-01546-JGB-SHK (C.D. Cal.). And nothing in the remaining portions of Judge Tipton’s order compels immigration officials to arrest or re-detain any non-citizens not currently in immigration custody. The Fifth Circuit’s stay will remain in place until the federal government’s appeal of the Tipton injunction is resolved."