The Most Important Immigration Rulings of 2022 and the Forecast for 2023
By Elizabeth Jacobs on January 12, 2023
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Elizabeth Jacobs is the director of regulatory affairs and policy at the Center for Immigration Studies.
Over the past few years, federal judges have played an increasing powerful role in the U.S. government’s ability to implement immigration policies and programs. 2022 was no different. Here is a recap of some of last year’s most important judicial decisions that have helped or hindered immigration enforcement efforts (or lack thereof) across the United States. Understanding these rulings is crucial to forecasting what’s to come in 2023.
United States v. Texas
The Policy Challenged: On September 30, 2021, Secretary of Homeland Security Alejandro Mayorkas issued a policy memorandum, titled “Guidelines for the Enforcement of Civil Immigration Law”, which established a non-exhaustive list of factors that DHS officers must take into account before investigating, questioning, arresting, detaining, prosecuting, or removing aliens in the United States (collectively known as “enforcement action”). While the memorandum purports to not “compel a specific action to be taken”, the policy directly obstructs the rule of law by explicitly assuring that an alien’s illegal immigration status alone will not compel any DHS enforcement action.1
Specifically, Secretary Mayorkas limited DHS’s enforcement priorities to include only aliens who pose a threat to national security, public safety, or border security, as the guidance narrowly defined those terms. Under these categories, DHS officers are only permitted to consider illegal or criminal aliens for removal who have engaged in terrorism or espionage; pose a current threat to public safety; or who have been apprehended after recently crossing the border illegally (after the relatively recent and arbitrary date of November 1, 2020).
The DHS policy goes further, instructing DHS officers to apply a non-exhaustive list of mitigating and aggravating factors when considering whether to initiate or advance an enforcement action against aliens who pose a “current threat to public safety” on account of their criminal histories. While officers may consider factors such as the sophistication or seriousness of an alien’s crimes as permitting enforcement, the policy memorandum encourages DHS officers to refuse to act (regardless of statutory mandates) if sufficient mitigating factors exist. As a result of this and similar non-enforcement policies put in place since January 2021, removals of both criminal and illegal aliens have dropped to historic lows, all while border crossings have reached record-breaking highs.2
https://cis.org/Report/Most-Important-Immigration-Rulings-2022-and-Forecast-2023
