Republican-led states pleaded Wednesday with a federal judge in Ohio to nix the Biden administration’s limits on immigration arrests and deportations, saying the Homeland Security Department’s new rules amount to an “abdication” of duty under the law.
Deportations have plummeted for murderers, burglars, sexual assault convicts and nearly every other category of criminal, Ohio Deputy Solicitor General May Mailman told the judge.
“This is an abdication framework,” Ms. Mailman said.
Ohio, Arizona and Montana are challenging the rules written last year by Homeland Security Secretary Alejandro Mayorkas that restrict which immigrants are targeted for arrest or deportation.
Mr. Mayorkas said being in the country illegally is not enough reason to be picked up or removed. Criminal records or cases in which a judge has ordered deportation must be balanced against other factors, such as how old the cases are and whether families in the U.S. depend on the illegal immigrant, he said.
Michael F. Knapp, a Justice Department lawyer, told the court Wednesday that the new rules take “a more humanitarian approach” to enforcement.
U.S. District Judge Michael J. Newman, a Trump appointee, listened during the nearly 90 minutes of arguments and didn’t give any indication which way he was leaning.
The Justice Department asked the judge to toss out the case. It said states don’t have the standing to sue and decisions Mr. Mayorkas makes are immune to court review.
Even if a court can intervene, Mr. Knapp said, the new rules are justified.
He said more than 11 million noncitizens are “potentially removable” from the U.S. and Congress hasn’t given Homeland Security anywhere near enough money to pursue all of them. He said the law specifically tells the homeland security secretary to decide the best way to use the money.
He pointed to data showing that the number of aggravated felons arrested during a period in 2021 was nearly double the same period in 2020, even though the overall number of arrests dropped.
“That data showed that prioritization works. If you tell your officials, your line officials, to focus on threats to public safety, then there will be an increase in enforcement actions against threats to public safety,” Mr. Knapp said.
Ms. Mailman said it is unfair to compare 2021 with 2020 when the pandemic shut down much of U.S. Immigration and Customs Enforcement’s activities.
Mr. Mayorkas’ rules, she said, go beyond priorities and put people entirely out of reach of immigration enforcement.
She said the proof is the collapse of enforcement numbers, and she drew a comparison to a bus: If ICE is still filling the bus, even if they aren’t the same people as before, it would suggest the agency is following priorities. If the bus is much emptier than before, then it suggests the goal is to thwart enforcement.
“ICE is very much underperforming their resources,” Ms. Mailman said.
The plaintiff states have asked for a preliminary injunction to block Mr. Mayorkas’ priorities.
Texas and Louisiana are challenging the priorities in federal court in Texas.
ICE has yet to release its final 2021 data, but sources have told The Washington Times that the numbers will show a severe collapse in enforcement, which could further undercut the government’s case.
