The rules instruct ICE agents to prioritize the arrest of immigrants with serious criminal records, those deemed to pose a national security risk and migrants who recently entered the U.S. illegally.
— The Supreme Court heard oral arguments Tuesday in a case that could have major implications on the power of the executive branch to issue rules governing the enforcement of U.S. immigration laws, as well as the ability of states and organizations to challenge those directives.issued by Homeland Security Secretary Alejandro Mayorkas in September 2021 that instructed Immigration and Customs Enforcement agents to prioritize the arrest of migrants who recently entered the U.S.
"Across 25 years and five presidential administrations, the agency has never implemented the [Immigration and Nationality Act] in the manner that [Texas and Louisiana] suggest," Prelogar told the justices."Given congressional funding choices, it would be impossible for DHS to do so." Several justices, including liberals Sonia Sotomayor and Ketanji Brown Jackson and conservative Brett Kavanaugh, highlighted that law enforcement officials often rely on a long-standing authority known as"prosecutorial discretion" when making prosecution and arrest decisions given the impracticality of going after all those suspected of violating the law.
For decades, including before ICE's creation in 2003, U.S. deportation agents have been instructed to exercise prosecutorial discretion to determine whether filing a charge or making an arrest is appropriate and advances the interest of justice.
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