() — The U.S. Supreme Court on Tuesday heard arguments regarding a Biden administration immigration policy that would prioritize the deportation of people who are in the country without authorization and who present the greatest public safety risk.
The policy, which has so far been blocked, stems from a September 2021 Department of Homeland Security (DHS) directive that paused deportation unless the person had committed acts of terrorism, espionage or presented “egregious threats to public safety.”
Texas and Louisiana sued over the directive, saying it violates federal law that requires the detention of people who are in the U.S. illegally and who have been convicted of serious crimes.
The states argue they would face added costs of having to detain people that the federal government might allow to remain free inside the United States, despite their criminal records.
Counties in some states have contracts with the U.S. Immigration and Customs Enforcement and receive money for housing federal immigration detainees at local jails.
What would the policy change?
The guidance updated a Trump-era policy that removed people who were in the country without authorization regardless of criminal history or community ties.
Under the new policy, a noncitizen who poses a threat to public safety would be a priority for deportation after an assessment of the individual and the totality of the facts and circumstances,” according to the 2021 memorandum from Secretary of Homeland Security Alejandro Mayorkas.
Aggravating factors such as the gravity of the offense or a serious prior criminal record would be taken into consideration as would mitigating factors such as a mental health condition that might have contributed to the offense, or eligibility for humanitarian protection.
“The overriding question is whether the noncitizen poses a current threat to public safety,” the memorandum states.
On June 10, the U.S. District Court for the Southern District of Texas vacated Mayorkas’ 2021 memorandum.
What are the arguments?
In his memorandum, Mayorkas stated the U.S. doesn’t have the resources to apprehend and deport each of the estimated 11 million undocumented or otherwise removable noncitizens in the country.
“In exercising our discretion, we are guided by the fact that the majority of undocumented noncitizens who could be subject to removal have been contributing members of our communities for years,” Mayorkas wrote. “They include individuals who work on the frontlines in the battle against COVID, lead our congregations of faith, teach our children, do back-breaking farm work to help deliver food to our table, and contribute in many other meaningful ways.”
Critics, however, have argued the policy allowed too many noncitizens to avoid the consequences of entering the U.S. without authorization, overstaying visas or otherwise violating immigration laws.
Texas and Louisiana in particular also say the new policy would conflict with federal law that requires the detention of people who are in the U.S. without authorization and who have been convicted of serious crimes.
Kinney County, Texas, Sheriff Brad Coe said he has dealt with human and drug smuggling pursuits consistently for more than a year, and he hopes the court rules against the Biden-era policy.
“I hope the outcome is the Supreme Court rules in our favor, that yes, immigration laws need to be enforced and they need to be enforced by the book and that the Secretary of Homeland Security does not have the authority to circumvent the law,” Coe told .
The administration, however, claimed states don’t have the standing to sue and that the federal government has broad discretion over immigration policy and enforcement.
What’s going on at the border?
U.S. Customs and Border Patrol (CBP) has been processing nearly half a million people a day, according to the most recent numbers for fiscal year 2021, the most recent data available.
CBP also apprehended about 1,703 people daily between U.S. ports of entry, and arrested an average of 25 people wanted on criminal warrants, according to the agency’s website.
In his recent testimony before lawmakers, Mayorkas said migration patterns have changed dramatically over the years.
“When I was deputy secretary, we were very concerned about migration from the Central American countries of El Salvador, Guatemala and Honduras,” Mayorkas said during his Nov. 17 testimony. “We have encountered now the highest level of encounters by Venezuelans, Cubans and Nicaraguans, and that changed demographic makes the challenge even more acute because our diplomatic relations with these countries is obviously quite strained and we’re unable to remove as easily individuals from these countries of origin.”
Tuesday’s Supreme Court hearing comes on the heels of a federal judge’s decision earlier this month to block Title 42, the COVID-19 pandemic-era public health policy that allowed CBP agents to turn away migrants.
DHS now has until Dec. 21 to transition away from Title 42 and send additional resources to the border.
The Associated Press contributed to this report.