Florida Appeals Denial of Injunction Against Biden’s Non-Enforcement Policy

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June 25, 2021

IRLI and attorneys’ group show how lower court erred

WASHINGTON—The Immigration Reform Law Institute (IRLI) has filed a friend-of-the-court brief in the Eleventh Circuit Court of Appeals in support of the State of Florida, which is appealing a lower-court denial of a preliminary injunction against the Biden administration’s immigration enforcement priorities set forth in ICE’s February 18, 2021, interim guidance memorandum. Attorneys United for a Secure America (AUSA), a project of IRLI, also filed a brief in support of Florida on behalf of the group Advocates for Victims of Illegal Alien Crime.

The lower court never reached the merits of Florida’s claim that the enforcement priorities are unlawful. Instead, it found that Florida could not challenge them because they were not final agency action and because they were within ICE’s discretion given by law.

In their briefs on appeal, IRLI and AUSA refute both points. The non-enforcement policy is final because it has major legal impacts on many people. ICE’s enforcement priorities prevent immigration officers from using their lawful authority to take mandatory enforcement actions against a broad range of aliens.

Under ICE’s enforcement guidelines, only terrorists, spies, other national security threats, those who entered the United States after November 1, 2020, aggravated felons, and criminal gang members may be apprehended or removed. Any other alien, including other aliens who have committed serious crimes, may not be removed or detained.

IRLI and AUSA also show that none of this is within ICE’s discretion. Rather, the law mandates that ICE detain and remove the aliens—including many criminals—that the administration is letting go free.

The case is part of the effort by a number of states to push back against the Biden administration’s failure to enforce immigration laws and protect the American people. Earlier, a judge in the U.S. District Court for the Southern District of Texas granted the Lone Star State’s motion for a preliminary injunction against the administration’s 100-day deportation ban. IRLI and AUSA had both filed friend-of-the-court briefs in that case.

“It is not uncommon for lower courts to get the law wrong, and that is what happened here,” said Dale L. Wilcox, executive director and general counsel of IRLI. “We have to make clear that no administration has the discretion to refuse to enforce the law. Here, the law says these aliens must be detained and removed—and for good reason. Many of them face final orders of removal because of their criminal activity in the United States, and their release is dangerous to the public. Biden’s calculated stand down in immigration enforcement is simply unconscionable, and must be fought here and elsewhere.”

The case is Florida v. United States, No. 21-11715 (Eleventh Circuit).

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