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Expert: Evidence Supporting Tipton Order "Impressively Flimsy"

February 24, 2021 (7 min read)

Prof. César Cuauhtémoc García Hernández, Feb. 24, 2021

"In a 105-page order, a federal judge in Texas granted a preliminary injunction yesterday blocking the Biden administration from implementing a 100-day deportation pause. The same court previously blocked the pause by issuing a temporary restraining order. The injunction is effective immediately and applies nationwide. As a result, I expect to see the administration turn to the U.S. Court of Appeals for the Fifth Circuit soon.

The first 20 pages of the opinion read like someone’s notes about how immigration law works. Entire sentences are devoted to such claims as “ICE is an agency within DHS,” a point that apparently needs a footnote, a citation, and a parenthetical explanation of the citation. Of course, there’s also an entire paragraph about the 3 branches of government with a needless quotation of James Madison (and this isn’t even the same section of the decision that cites John Marshall or the one that cites Joseph Story).

The preliminary injunction, issued on February 23, blocks the Biden administration from implementing a 100-day pause on removal of most people with final orders of removal. The pause was initially announced in a January 20, 2021 memo from David Pekoske, Acting Secretary of Homeland Security.

The court found that Texas is entitled to sue DHS—known as “standing”—because the state’s “alleged injuries to its detention and education costs are sufficiently concrete and actual or imminent.” In accepting the state’s claim of financial injury over detention costs, the court explains, “In 2018, Texas detained 8,951 criminal aliens for a total of 2,439,110 days, costing it $152,054,117. If the 100-day pause causes the number of criminal aliens present in Texas to rise above and beyond what Texas had anticipated and a portion of those criminal aliens recidivate…Texas anticipates its costs ‘will increase.’” There is almost no further exploration of whether the two conditional statements in that sentence are likely to occur: will the pause actually result in there being more migrants convicted of a crime in Texas and, if so, will some of them commit more crimes? The only explanation that the court gives is to credit the state’s “evidence that criminal aliens recently detained in one county jail have a 70% ‘recidivism’ rate.”

This evidence, however, is impressively flimsy. It consists of a two-page declaration by Bill E. Waybord, Sheriff of Tarrant County, Texas, who says, “Around May of 2020, my office examined the recidivism rates for the inmates in custody at a given time. We did this by examining the criminal history files of every inmate in custody with an immigration detainer at that point in time. We found a recidivism rate (indicated by prior jail time) of approximately 70% for that population.”

That’s it. There is no information about whether the prior jail time was related to a conviction, a relevant point given that jails are also where people are sent upon arrest while they are awaiting prosecution. Sherriff Waybord’s declaration also doesn’t say whether the people against whom ICE lodged detainers were U.S. citizens, a relevant point because ICE sometimes lodges detainers against U.S. citizens.

Also, the court misses a basic feature of the relationship between the criminal justice system and immigration agencies: the criminal justice system runs its course first, then immigration courts consider whether a removal order is appropriate. As a result, most “criminal aliens” confined in county jails or state prisons have not been ordered removed, thus they wouldn’t be subject to the 100-day deportation pause since it only applies to people who have been ordered removed. Why did the January 20 memo from Acting Secretary of Homeland Security David Pekoske focus on people who have been ordered removed? Because ICE can’t deport people who haven’t been ordered removed.

In addition, the court credits the state’s submission of statistics indicating that in fiscal year 2019, “ICE removed a total of 58,916 criminal aliens from Dallas, Houston and San Antonio.” The 100-day pause, the court then concludes, means 16,100 “criminal aliens” wouldn’t be removed “from those Texas cities.” There are multiple problems with this analysis.

First, the court is relying on data from ICE Enforcement and Removal Operations that lists the number of people removed by ICE’s “area of responsibility.” An area of responsibility is simply the agency’s way of breaking up its offices into discrete units. It doesn’t have anything to do with where migrants live, did live, or would live if they were released into the United States. As such, pointing to the number of people removed by agents who work in ICE’s San Antonio area of responsibility says very little about whether the people removed have ever lived or would ever live in San Antonio (or, for that matter, anywhere else in Texas).

Second, to reach the conclusion that ICE removed 58,916 “criminal aliens” from Dallas, Houston, and San Antonio, the court added the number of people removed who had been convicted of a crime with the number of people removed who had merely been charged with a crime (but not convicted). Many people charged with crimes are never convicted, so there’s no reason to assume that everyone removed after being charged with a crime would eventually have been convicted.

Turning to the state’s claim of financial injury due to unanticipated educational costs for unaccompanied migrant children who might avoid removal due to the 100-day pause, the court accepted a similarly bare-bones claim. The state education agency explained that school districts plan budgets in the past, thus any unexpected increase in the number of enrolled kids “would increase the State’s cost.”

This is not a particularly sophisticated explanation, but it also misses the mark. Obviously enrolling more kids than what was projected for would increase costs over the budgeted amount. What matters is whether the 100-day deportation pause would increase those costs and, if so, to what extent. There is no discussion of this in the court’s decision. Instead, the court acknowledges, “Texas fails to provide evidence demonstrating that unaccompanied children have a propensity to attend public school.” It then adds, “Texas need not make that showing.”

I can’t avoid noting that the court also referenced the amount of money that Texas spends “in its bilingual program.” It doesn’t actually rely on this to reach its legal conclusion regarding standing, but it is remarkable that the court mentions the bilingual program’s cost separately from the cost “per regular student” for two reasons. First, because the court suggests that bilingual children are not “regular.” Whatever the court means by regular, it’s lamentable that we haven’t yet moved past stark characterizations that inherently suggest some people are anomalous.

Second, the court’s description is troubling because the court implies that kids in the state’s bilingual program are not U.S. citizens or migrants who are authorized to be present in the United States. To this bilingual U.S. citizen born in Texas, this association is a sad reminder that, in some quarters, we’re still tuck in the bilingual education policy debates of the 1970s and 1980s. It’s also factually incorrect. In 2013, for example, approximately 19 percent of people over the age of 5 years classified as “limited English proficient” were born in the United States, meaning they are U.S. citizens. Two years later that remained true. These are data for the entire country. If the court had evidence indicating that the LEP population differs dramatically in Texas, it didn’t bother referencing that information.

After concluding that Texas could sue DHS over its 100-day deportation pause, the court turned to whether DHS has the power to pause enforcement actions against some people for a specified period of time. A federal statute provides that “when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days.” The key dispute centers on the word “shall.” As the court explained, “The Parties disagree over whether the word ‘shall’ means must.”

Normally, the court added, federal laws that say that the government “shall” do something mean that it may but not that it must. To read “shall” as “must,” the court explained, there must have been some indication from Congress that it meant to direct the agency to act in a certain way. Where “the statute’s manifest purpose is to protect the public or private interests of innocent third parties,” the court went on, “shall” will be interpreted as “must.” Of course, just about everything implicates public of private interests so it’s not surprising to find the court conclude that here shall means must."

César Cuauhtémoc García Hernández is a scholar of migration who regularly weighs in on pressing public affairs.