An appeals court Friday appeared skeptical of arguments by Florida Attorney General Ashley Moody’s office that immigration-enforcement moves by the Biden administration have violated federal law and should be blocked.
A three-judge panel of the 11th U.S. Circuit Court of Appeals held a hearing in the state’s request for a preliminary injunction against the Biden administration. A federal district judge rejected the request in May, prompting Moody to go to the Atlanta-based appeals court.
The lawsuit focuses heavily on memos issued Jan. 20 and Feb. 18 by the U.S. Department of Homeland Security and U.S. Immigration and Customs Enforcement about immigration enforcement. The memos set priorities for enforcement, including focusing on immigrants who pose national-security threats, have been convicted of aggravated felonies, or have been convicted of gang-related activity.
But Florida Solicitor General Henry Whitaker argued during Friday’s hearing that the Biden administration has violated a 1996 law that requires authorities to detain and remove certain “criminal aliens.” The state contends the memos have led to Florida having to release criminals at the end of sentences because immigration authorities will not take custody of them.
“The issue here is whether, when presented with such an alien on a silver platter, so to speak, the government has an obligation to take action consistent with the mandatory directive of Congress,” Whitaker said.
But judges pointed to authorities having discretion in enforcing laws — and to a shortage of beds where immigrants could be detained before potential deportation.
“All the (federal) government is seeking to do in this case is to prioritize the removal of those who are a danger to the security of the United States,” Judge Charles Wilson said, before questioning “why the state of Florida would even want the Department of Homeland Security not to prioritize.”
Similarly, Judge Robin Rosenbaum pointed to situations where “decisions have to be made” amid limited prosecutorial resources.
“Isn’t in every case where that’s the situation discretion granted to the enforcing authority to decide its priorities and how to use its limited resources?” Rosenbaum asked.
U.S. Department of Justice attorney Thomas Byron, who represented the Biden administration, called Florida’s request for a preliminary injunction “extraordinary.”
“It’s particularly extraordinary that Florida seeks an injunction that would constrain the deep-rooted prosecutorial discretion that the Supreme Court has repeatedly recognized” in other cases, Byron said.
Moody and Gov. Ron DeSantis have been highly critical of the Biden administration on immigration issues, with Moody filing the lawsuit in March. In addition to arguing that the administration has violated immigration law, Moody’s office contends it has violated what is known as the Administrative Procedure Act.
But in the May decision rejecting the request for a preliminary injunction, U.S. District Judge Charlene Edwards Honeywell ruled that the Biden administration’s immigration memos were “interim policies” that were not final actions by the federal agencies and, as a result, were not subject to judicial review. She also wrote that the memos prioritize immigration-enforcement decisions.
“The guidelines are just that; they are not statutes and do not have the status of law as they constitute a prioritization and not a prohibition of enforcement,” Honeywell, a judge in the federal Middle District of Florida, wrote. “The policies do not change anyone’s legal status nor do they prohibit the enforcement of any law or detention of any noncitizen. The prioritization scheme does not necessarily have a direct day-to-day impact on Florida, although certainly an indirect impact can be claimed.”
While it is unclear how long the appeals court will take to rule in the case, Byron suggested that the dispute could become moot because the Biden administration is expected to release revised guidelines next week.
But Whitaker said he would wait to see what is released and noted that federal officials missed earlier deadlines.
“I guess I’ll believe it when I see it, and we can go from there,” Whitaker said. “But I’m not going to take a position on what should happen without knowing what the guidelines are.”
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