Those who have been detained by U.S. immigration officials will often be unsure about their options for avoiding deportation. People in this situation face many difficulties, especially if they have entered the United States seeking safety and fear that they and their families will be placed at risk of harm if they are forced to return to their home countries. While immigrants may have options for defending against deportation, some recent rulings by the U.S. Supreme Court may make it more difficult for them to properly address these issues and be released from detention.

Immigration Bonds and the Post-Removal-Order Statute

In two recent cases, the Supreme Court looked at whether immigration officials can hold people indefinitely and whether those who are being detained have the right to request bond hearings. One of the laws addressed in these cases, Section 1231 of the U.S. Immigration Code, is known as the “post-removal-order statute.” Under this law, once a deportation/removal order is issued, a person must be held in detention for at least 90 days. However, if the person is not removed from the United States after 90 days, they may be released and placed under supervision.

In the case of Johnson v. Arteaga-Martinez, immigration officials had continued to detain an immigrant past the 90-day removal period, but the process of removal had been halted because the immigrant feared that he would face persecution or torture if he was returned to his country of origin. Based on a previous case, the immigrant argued that after he had been detained for six months, he had the right to a bond hearing to determine whether he could be released and placed under supervision while he was pursuing a request for withholding of removal.

For undocumented immigrants living in the United States, the threat of deportation is ever-present. This threat increased significantly during the presidency of Donald Trump, who put policies in place in which nearly all immigrants without legal status could be subject to arrest and placed in removal proceedings. During the presidency of Joe Biden, more measured policies have been put in place, decreasing the number of deportations. However, a recent ruling by a federal judge may have limited the administration’s ability to carry out these policies, potentially putting more immigrants at risk of deportation.

Deportation Prioritization Policy Ruled Illegal

In September of 2021, Secretary of Homeland Security Alejandro Mayorkas issued a memo detailing how deportation cases would be prioritized by immigration officials. The policy outlined in this memo allowed for prosecutorial discretion in these cases, and it stated that officials would focus on cases in which immigrants could present threats to national security, threats to public safety, or threats to border security. Officials were also instructed to take other factors into account in deportation cases, such as how long a person had lived in the United States, whether they had any children who were U.S. citizens, and whether they were of advanced age.

In June of 2022, a federal judge in Texas ruled that this policy was illegal, and this ruling went into effect on June 24. The states of Texas and Louisiana had filed a lawsuit challenging the policy, and they claimed that restrictions on deportations would increase the risk of crime and place a burden on the states due to the need to provide healthcare for undocumented immigrants. The judge ruled in favor of the states, stating that the policy was “arbitrary and capricious,” and it was put in place without following the proper procedures, including allowing for public comments. The ruling stated that by changing the standards for when immigrants can be detained and when immigration officials can pursue deportations, this was a violation of immigration laws.

Since March of 2020, immigration officials have used a rule known as Title 42 to expel many immigrants who have entered the United States illegally without going through the standard deportation procedures. Title 42 was implemented by the administration of President Donald Trump, and it was put in place in response to the COVID-19 pandemic with the stated intent of preventing the spread of infections by people entering the United States from other countries. While the administration of President Joe Biden has announced that it intends to lift this policy, a recent ruling by a federal judge in Louisiana has put a halt to these plans.

Judge Orders Title 42 to Remain in Place Throughout the United States

When the Biden administration announced in April of 2022 that it planned to lift Title 42, several states filed a lawsuit against the administration seeking to keep the order in place. They claimed that lifting the order would force the states to use taxpayer money to address issues related to illegal immigrants, including for law enforcement, healthcare, and education, and this would constitute “irreparable harm.” Judge Robert Summerhays of the U.S. District Court for the Western District of Louisiana, who was appointed by Donald Trump, agreed, and he issued a preliminary injunction preventing the administration from lifting Title 42.

The primary reason for the judge’s order involved arguments by the states that the administration had failed to follow the proper procedures regarding federal rules. Specifically, the administration did not post a public notice of the planned rule change that would allow for public comments. The judge also stated that keeping Title 42 in place would best serve the interests of the public.

With millions of undocumented immigrants in the United States, immigration courts have a significant backlog of cases. Because of this, and in an effort to ensure that immigration officials are properly addressing issues that may affect the safety of people in the U.S., the administration of President Joe Biden has taken action to allow for an increased use of prosecutorial discretion in deportation cases. 

What Is Prosecutorial Discretion?

Immigration officials may evaluate a case to determine whether to enforce immigration laws, and in some cases, they may choose to dismiss a case, pursue an administrative closure, or agree to stipulations such as releasing a person on an immigration bond or continuing a case until a later date. During removal proceedings, a person may request prosecutorial discretion and ask for a case to be dismissed or for other forms of relief.

How Have Policies Related to Prosecutorial Discretion Changed?

In September of 2021, Secretary of Homeland Security Alejandro Mayorkas issued a memo detailing how immigration enforcement actions will be prioritized. On April 3, 2022, Kerry Doyle, the principal legal advisor for Immigration and Customs Enforcement (ICE), issued a memo providing guidance on how prosecutorial discretion may be used in immigration cases. The Doyle memorandum detailed three priorities for immigration enforcement:

There are many situations where immigrants living in the United States may run into trouble with immigration officials. In these cases, the threat of deportation can be very worrisome, especially if it could result in a person being uprooted from their home and community, taken away from their loved ones, and forced to resettle in another country. While there are a number of potential defenses that may be available, once a deportation order is issued, a person may worry that they will have no way to avoid removal from the United States. However, it may be possible to pursue an appeal of a deportation order, and a person may be able to receive a stay that will temporarily prevent their removal.

BIA Emergency Stay Requests

When an order is issued that prevents government officials or other parties from taking certain actions, this is known as a “stay.” After a deportation order is issued by an immigration court judge, the immigrant subject to this order may request an emergency stay while they are pursuing an appeal. A person must file a written request for an emergency stay with the Board of Immigration Appeals (BIA), and their request may be considered if all of the following are true:

• The person has been detained by the Department of Homeland Security.

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