Biden deportation ban tripped up by same 73-year-old law that hampered Trump executive orders
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U.S. District Court Judge Drew B. Tipton stated in a Tuesday order that the directive from acting Homeland Security Secretary David Pekoske that halted removing those who already had final orders of removal against them appeared to run afoul of the Administrative Procedure Act, which governs how federal agencies conduct rulemaking. The same law was used to block a number of Trump administration actions as well.
"The Court finds that, by ordering a 100-day pause on all removals of aliens already subject to a final order of removal, it appears that the January 20 Memorandum is clearly not in accordance with, or is in excess of, the authority accorded to the Attorney General pursuant to 8 U.S.C. § 1231(a)(1)(A)."
That statute says that following an order of removal, the attorney general has 90 days to have the individual deported. Texas Attorney General Ken Paxton argued that the Biden administration's memorandum calling for the 100-day pause violated the Administrative Procedure Act because it is "not in accordance with law" and exceeds the government's authority.
The Biden administration argued that the 90-day time frame is not mandatory, but Tipton disagreed. He noted that the statutory language says that "when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days."
"Here, 'shall' means must," Tipton wrote.
Additionally, the judge said that the decision to pause deportations for 100 days also appears to violate the Administrative Procedure Act for being "arbitrary and capricious."
"Here, the January 20 Memorandum not only fails to consider potential policies more limited in scope and time, but it also fails to provide any concrete, reasonable justification for a 100-day pause on deportation," Tipton wrote. The judge noted that the administration claimed that "unique circumstances" necessitate the pause so that DHS can "provide sufficient staff and resources" as well as "comply with COVID-19 protocols," but that they did not explain why a 100-day pause would help accomplish this.
The Administrative Procedure Act had been successfully wielded to block several high-profile actions by the Trump administration, including attempts to end the 2020 census count a month ahead of schedule, revoke New Yorkers’ ability to participate in Trusted Traveler programs and change asylum standards.
Because the judge believed that Texas has a likelihood of success on the merits of the case due to their Administrative Procedure Act arguments and showed that there was a threat of irreparable harm, he granted the temporary restraining order, which provides a 14-day nationwide prohibition against enforcing the deportation pause.
Fox News reached out to the Department of Homeland Security for comment, but it did not immediately respond.
"We're confident that as the case proceeds, it will be clear that this measure was wholly appropriate in ordering a temporary pause to allow the agency to carefully review its policies, procedures, and enforcement priorities – while allowing for a greater focus on threats to public safety and national security," a White House spokesman said. "President Biden remains committed to taking immediate action to reform our immigration system to ensure it’s upholding American values while keeping our communities safe."
Fox News' Brittany De Lea contributed to this report.