The U.S. Supreme Court will hear arguments Tuesday in a long-running dispute over how to enforce the nation's immigration laws.

President Biden's administration wants to set guidelines for whom immigration authorities can target for arrest and deportation. But a group of Republican attorneys general sued to block the guidelines, arguing that they were preventing immigration authorities from doing their jobs.

The outcome of the case could have major implications — and not just for immigration enforcement. Former Department of Homeland Security officials and immigrant advocates say the case could hinge on the question of how much discretion law enforcement agencies have to decide how and when to enforce the law.

"A cop doesn't pull over every speeder on the highway," says Jeremy McKinney, the president of American Immigration Lawyers Association. "So you have to make choices. All that the Biden administration was attempting to do was make choices, just like every administration before it."

It's widely agreed that Immigration and Customs Enforcement does not have the resources to arrest or deport all of the roughly 11 million people in the country without authorization. So immigration authorities have to set enforcement priorities — priorities that have swung sharply from one administration to the next.

'Prosecutorial discretion'

During former President Trump's administration, ICE agents and officers were empowered to arrest and deport anyone who was living in the U.S. without legal authorization.

"If you're in this country illegally and you committed a crime by entering this country, you should be uncomfortable," acting ICE director Thomas Homan told a congressional subcommittee in 2017. "You should look over your shoulder, and you need to be worried."

When the Biden administration took office, it put on the brakes. Instead of arresting and deporting anyone they encountered who was in the country without authorization, immigration authorities were given a very different set of priorities.

Homeland Security Secretary Alejandro Mayorkas described the new guidance as an exercise of prosecutorial discretion.

"We have guided our workforce to exercise its discretion to focus on individuals who pose a threat to national security, public safety and border security," Mayorkas told NPR in an interview last year.

There had been official immigration enforcement priorities at the Department of Homeland Security before. During former President Obama's administration, ICE officers and agents were also encouraged to use prosecutorial discretion, and focus on threats to public safety.

But the announcement of the Biden administration's enforcement priorities prompted multiple lawsuits from immigration hardliners, who argue that this policy goes far beyond what any previous administration had done.

"They went way left on this. So it's almost like the Immigration and Nationality Act doesn't exist anymore," said Homan, the former head of ICE, during an interview last year.

Texas and Louisiana win in federal court

Part of what outraged Homan and other hardliners about the new priorities was that under the Biden administration's guidance, simply being present in the U.S. without legal authorization "should not alone be the basis" for immigration authorities to arrest or deport someone.

"Saying that someone cannot be removed just because they're an illegal alien is a drastic change in our immigration law," says Christopher Hajec at the Immigration Reform Law Institute in Washington, which filed a friend of the court brief before the Supreme Court. "It's not within an agency's power to do that. Only Congress could do that."

That's an argument that the states of Texas and Louisiana made in court. A federal judge in Texas agreed, and threw out the administration's enforcement priorities in June.

But former DHS officials of both parties worry about the implications of that ruling.

"Not everyone can be arrested or put in proceedings," said Julie Myers Wood, the head of ICE during the George W. Bush administration, and one of several former DHS officials who filed a brief expressing their concerns to the Supreme Court.

Wood, a former federal prosecutor, says every law enforcement agency exercises discretion about how to deploy its resources — and that those decisions are too important to leave up to individual field offices.

"What you don't want to see is a situation where a particular office is focusing on all noncriminal arrests simply because they are easier or more convenient to the detriment of individuals that have serious criminal histories," she said in an interview.

Wood says she might not have chosen the same priorities as Secretary Mayorkas, but it's his call to make.

If the lower court's ruling is upheld, immigrant advocates worry it could signal a return to the more expansive priorities of the Trump administration.

"There was a lot of fear in the community at that time," says Sarah Owings, an immigration lawyer in Atlanta. "And I did see some really awful things."

Owings says she had a number of clients who had been following the guidance and checking in with ICE for years who suddenly found themselves in detention. She remembers one man in particular whose wife was pregnant at the time of his check-in with ICE.

"He had a wife who was a high-risk pregnancy and a few weeks away from delivering, and they were like, well, he used a false name one time 10 years ago, so we're taking you in today," Owings recalls. "I really hope that we don't get back to that era."

Copyright 2022 NPR. To see more, visit https://www.npr.org.

Transcript

RACHEL MARTIN, HOST:

The U.S. Supreme Court is hearing arguments today in a long-running dispute over how to enforce this nation's immigration laws. The Biden administration wants to set guidelines around who can be arrested and deported by immigration authorities. But a group of states, including Texas, argue that those guidelines could prevent authorities from doing their jobs. NPR's Joel Rose reports.

JOEL ROSE, BYLINE: For years now, the guidance about immigration enforcement has swung sharply from one administration to the next. Under former President Trump, immigration authorities were empowered to arrest and deport anyone who was living in the U.S. without legal authorization. Here's the acting director of ICE, Thomas Homan, testifying before Congress in 2017.

(SOUNDBITE OF ARCHIVED RECORDING)

THOMAS HOMAN: If you're in this country illegally and you committed a crime by entering this country, you should be uncomfortable. You should look over your shoulder, and you need to be worried.

ROSE: When the Biden administration took office, it put on the brakes. Instead of arresting and deporting anyone they encountered, immigration authorities were given a whole new set of priorities. Here's Homeland Security Secretary Alejandro Mayorkas in an interview last year.

(SOUNDBITE OF ARCHIVED RECORDING)

ALEJANDRO MAYORKAS: We have guided our work force to exercise its discretion to focus on individuals who pose a threat to national security, public safety and border security.

ROSE: Mayorkas framed this approach as prosecutorial discretion. Since ICE doesn't have the resources to arrest or deport all 11 million people in the country without legal authorization, its officers should use their discretion, he argued, to focus on the biggest threats to the public. The president of the American Immigration Lawyers Association, Jeremy McKinney, agrees that's the right thing to do.

JEREMY MCKINNEY: You have to make choices. All that the Biden administration was attempting to do was make choices, just like every administration before it.

ROSE: There had been official immigration priorities at DHS before, but this announcement prompted a major backlash from immigration hard-liners who argue these priorities go far beyond what any previous administration had done.

(SOUNDBITE OF ARCHIVED RECORDING)

HOMAN: They went way left on this. So it's almost like the Immigration Nationality Act don't exist anymore.

ROSE: That's Thomas Homan, the former head of ICE, during an interview last year. Part of what outraged Homan and other hard-liners about the Biden administration's priorities is that simply being in the country without authorization is not, by itself, generally enough justification to arrest or deport someone. Christopher Hajec is with the Immigration Reform Law Institute in Washington, which filed a friend of the court brief before the Supreme Court.

CHRISTOPHER HAJEC: Saying that someone cannot be removed just because they're an illegal alien is a drastic change in our immigration law, and it's not within an agency's power to do that. Only Congress could do that.

ROSE: That's an argument that the states of Texas and Louisiana made in court. A federal judge in Texas agreed and threw out the administration's priorities in June. But former DHS officials of both parties are worried about the implications of that ruling. They also filed a brief expressing their concerns to the Supreme Court.

JULIE MYERS WOOD: Not everyone can be arrested or put in proceedings, and so tough choices have to be made.

ROSE: Julie Myers Wood was the head of ICE during the George W. Bush administration. She's also a former federal prosecutor. Wood says every law enforcement agency exercises discretion about how to deploy its limited resources, and those decisions are too important to leave up to individual field offices.

WOOD: What you don't want to see is a situation where a particular office is focusing on all non-criminal arrests simply because they are easier or more convenient to the detriment of individuals that have serious criminal histories.

ROSE: Wood says she might not have chosen the same priorities as Secretary Mayorkas, but it's clearly his call to make.

Joel Rose, NPR News, Washington.

(SOUNDBITE OF JULIA KENT'S "TOURBILLON") Transcript provided by NPR, Copyright NPR.

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