Texas Takes on Deportation Ban

February 10, 2021

In brief, IRLI exposes Biden team chicanery

WASHINGTON—Yesterday, the Immigration Reform Law Institute (IRLI) filed a friend-of-the-court brief in the U.S. District Court for the Southern District of Texas in support of the State of Texas’s bid to strike down the Biden administration’s 100-day moratorium on deporting aliens against whom an immigration court has issued a final order of removal, very often because of their criminal activity. The court has already issued a temporary restraining order against this deportation ban, and now Texas seeks a longer-lasting preliminary injunction.

In its brief, IRLI shows that the deportation ban is unlawful for numerous reasons. For example, though the ban amounts to an administrative rule that controls what immigration enforcement agents may and may not do, it did not go through the notice-and-comment process required by law, and thus was void when issued. The ban also constitutes a blanket refusal by the administration to enforce the law requiring aliens unlawfully in the country to be deported, and thus violates the Constitution’s requirement on the President to take care that the laws be faithfully executed.

IRLI’s brief also exposes a stunning example of chicanery by the Biden administration. Normally, courts are supposed to defer to the expertise of executive agencies when reviewing their rules. But in this case, IRLI had reason to believe that the memorandum setting forth the deportation ban was not even produced by any administrative agency, but rather written by an anti-borders activist on Biden’s transition team. If so, the court should give it no deference at all.

Attorney Lawrence J. Joseph, who drafted IRLI’s brief, explained in a declaration to the court that, to find out who wrote the memorandum, he went to the PDF of it maintained on a government website. Looking at the document’s metadata, he saw that its author was Esther M. Olavarria, who works for the Executive Office of the President, not for the Department of Homeland Security (DHS), in the name of whose Acting Director the memorandum had been issued. When Mr. Joseph looked at the same PDF again later, he discovered that the metadata indicating Ms. Olavarria’s authorship had been removed.

“With this memorandum, the administration has run roughshod over the protections administrative law gives to the American people against arbitrary and irrational government actions,” said Dale L. Wilcox, executive director and general counsel of IRLI. “Our computer sleuthing shows that a White House activist who doesn’t even work for DHS wrote this ‘DHS’ memo, and that the highly-relevant information that she was the author was scrubbed from a government website during this lawsuit. Clearly, the administration has a lot of explaining to do.

“What it can never explain, and has never explained, is how its disastrous deportation ban, which will send a wave of criminal aliens out onto the streets of Texas and the whole country, is even a rational policy, let alone the product of reasoned decision-making, as the law requires,” Wilcox continued. “We hope the court enjoins the ban forthwith, and issues any supplementary orders necessary to enforce that injunction, and keep the system running as Congress mandated for the protection of public safety.”

The case is Texas v. United States, No. 6:21-cv-0003 (S.D. Tex.).

For additional information, contact: Brian Lonergan • 202-232-5590 • [email protected]