Federal judge extends order blocking Biden administration's 100-day deportation pause

A federal judge said Friday that he will extend his order, issued Tuesday, that blocks the Biden administration's plan to pause most deportations for 100 days as part a comprehensive review of immigration enforcement.

U.S. Judge Drew Tipton of Corpus Christi said he will add 14 days to his original 14-day temporary restraining order. The extra time is needed to ensure a full accounting of weighty constitutional and legal issues raised in the case, he said during a hearing.

The extension means Tipton has until Feb. 23, instead of Feb. 9, to decide whether to issue the preliminary injunction, requested by Texas Attorney General Ken Paxton, to bar the deportation pause.

During the hearing, conducted online via Zoom, Tipton also told lawyers that he has two particular points he wants answered.

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First, the judge said, he had significant questions about an agreement, signed in the final days of the Trump administration, that requires the Homeland Security Department to give Texas officials 180 days' notice before changing immigration enforcement in the state.

Biden administration lawyers have called the agreement, quietly signed Dec. 31 by Gov. Greg Abbott and Paxton, unenforceable, not binding on the new president and illegal because no state can have veto power over federal immigration authority.

"I want to know what led up to this agreement between the Department of Homeland Security and Texas; who was involved in negotiations; whether there were prior drafts of the agreement," Tipton said. "Was it communicated to the next administration or did they learn about it from this lawsuit (by Texas)?"

"This is an important and novel way for the states to interact with the federal government, so I am going to want background on that," he told lawyers for Texas.

A second major point, Tipton told lawyers for the U.S. government, was information on whether the deportation pause would lead to freedom for people who are accused of major crimes or who completed a prison sentence.

"I understand immigration is not able to house them for 100 days. What happens to that group?" Tipton asked. "Are they released? Detained?"

The memo on the deportation pause, released Jan. 20, the day President Joe Biden was inaugurated, says the 100-day moratorium does not apply to terrorists or those who pose a national security threat, but it says nothing about criminal charges or convictions, Tipton said.

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During Friday's hearing, lawyers for the U.S. and Texas said they plan to call no witnesses, submitting arguments in writing for Tipton's consideration. 

Extending the restraining order's deadline was supported by Texas but opposed by federal officials.

Once formally granted on Feb. 9, the extension can be appealed by the U.S. solicitor general, who is in charge of appeals by the federal government — but the Justice Department lawyer defending the deportation pause assured Tipton that he will meet deadlines for discovery and submitting legal briefs set for later that week, even if an appeal is filed.

The judge also:

• Set aside Feb. 19 for oral arguments on the matter if he finds it helpful.
• Deferred until next week a decision on whether two immigration groups, represented by the ACLU of Texas, can intervene in the case in opposition to Texas' bid for a preliminary injunction. Texas opposes their intervention, and the federal government was still studying the request.

A lawyer for the ACLU argued Friday that the organizations have important, practical information to offer on how immigration removal occurs.

ACLU lawyer Cody Wofsy also argued against extending the deadline for a decision, saying it will require deportation of people who have "bona fide claims" of asylum for humanitarian or safety reasons.

"Every day this injunction is in place, people are being deported. That is imposing serious harms on them, their families, their communities," Wofsy said.