Federal judge temporarily blocks Biden's 100-day deportation moratorium after Texas sues administration

Sign up for The Brief, our daily newsletter that keeps readers up to speed on the most essential Texas news.

A federal judge in Texas has temporarily blocked the Biden administration's 100-day moratorium on deportations of some undocumented immigrants.

Federal Judge Drew Tipton on Tuesday issued the order after Texas Attorney General Ken Paxton sued President Joe Biden's administration late last week alleging the moratorium is unconstitutional and violates an agreement between the Department of Homeland Security and Texas.

“Within 6 days of Biden’s inauguration, Texas has HALTED his illegal deportation freeze,” Paxton tweeted after the order. “*This* was a seditious left-wing insurrection. And my team and I stopped it.”

Tipton’s restraining order is effective for 14 days as the state's case against the moratorium continues.

Paxton argued the state would face financial harm if undocumented immigrants were released into the state because of costs associated with health care and education, and said the moratorium would also lure others to come to Texas. Tipton, an appointee of former President Donald Trump who took the bench last year, agreed.

"Texas argues that 'the categorical refusal to remove aliens ordered removable will encourage additional illegal immigration into Texas,' thereby exacerbating its public service costs. Such injury is not, as a legal matter, purely speculative," he wrote. "The Court finds that the foregoing establishes a substantial risk of imminent and irreparable harm to Texas.

The American Civil Liberties Union of Texas, who filed a brief urging Tipton to deny Paxton's request, decried the ruling in a statement and argued Biden's move was legal.

“Paxton sought to overturn the results of the 2020 presidential election by attempting to baselessly suppress votes; now he is attempting to force the Biden administration to follow Trump's xenophobic policies," said Kate Huddleston, attorney for the ACLU of Texas. "The administration’s pause on deportations is not only lawful but necessary to ensure that families are not separated and people are not returned to danger needlessly while the new administration reviews past actions.”

Biden’s proposed moratorium was signed just hours after he took his oath of office and was one of several immigration-related orders, which included a stop to border wall construction. The pause in removals was part a review and reset of enforcement policies within Customs and Border Protection, Immigration and Customs Enforcement and the U.S. Citizenship and Immigration Services agencies as the Biden administration "develops its final priorities," according to a statement from the Department of Homeland Security.

The moratorium was to exclude any immigrant "suspected of terrorism or espionage, or otherwise poses a danger to the national security of the United States." Those who entered after Nov. 1 and those who have voluntarily waived any rights to remain in the country, according to a DHS memo.

Paxton had also challenged the moratorium on the grounds that it violated an agreement signed by the Trump administration and Texas. The agreement requires the DHS to give notice to states before changing any immigration polices. The Biden administration questioned the validity of the agreements, which was signed just weeks before former President Trump left office.

“The federal government has plenary power over the enforcement of federal immigration law, and an outgoing administration cannot contract away that power for an incoming administration,” the federal attorneys said in a filing. But Tipton said his decision wasn't based on those contracts.

"The issues implicated by that agreement are of such gravity and constitutional import that they require further development of the record and briefing prior to addressing the merits," Tipton wrote.

During a hearing last Friday, the Biden administration indicated it would consider an immediate stop from the 5th U.S. Circuit Court of Appeals if the restraining order was granted, Huddleston said.

The Biden administration also inherited a pending legal challenge from Paxton's office over an Obama-era program that has shielded tens of thousands of Texas’ undocumented immigrants from deportation. The 2012 Deferred Action for Childhood Arrivals, or DACA, grants some undocumented immigrants a renewable, two-year work permit and a reprieve from deportation proceedings. Trump announced an end to the program in 2017 but the program has survived several legal challenges, including a 2020 decision by the U.S. Supreme Court that ruled the administration did not properly wind down the policy. But Paxton’s lawsuit, filed in 2018, is a separate challenge that questions the legality of the program.

Despite Tuesday's setback for Biden, his administration is reportedly planning to issue more executive orders on immigration this week on family reunification and the federal "public charge" rule for immigrants where a person could be denied a visa or green card if they received a government benefit.