FIRST ON FOX: Sen. Bill Hagerty, R-Tenn., is asking the Government Accountability Office if controversial Immigration and Customs Enforcement (ICE) guidance that dramatically reduced the scope of immigration enforcement could be subject to review by Congress — days after the Biden administration suffered a legal defeat in federal court over the rules.
“Give the record-setting numbers of border crossings that continue and the resulting effects upon federal, state and local governments and the American people, it is important that Congress have the opportunity to timely consider the Memoranda under the provisions of the [Congressional Review Act,] if they apply,” Hagerty said in a letter to GAO Comptroller General Gene Dodaro.
Hagerty was asking about the February ICE memo, along with parts of an earlier DHS memo, that limited agents to focusing on three categories of immigrants: those who pose a threat to national security; those who have crossed the border since Nov. 1, and those who have committed “aggravated felonies.” It followed on from Jan 20 guidance issued by the Department of Homeland Security.
Officials said the guidance does not prevent anyone from being arrested or deported. Instead, it directs resources at certain targets. However, field officers seeking to arrest someone outside of those three categories needed approval from their chain of command.
While Biden officials have said the guidance allows for the better prioritization of limited resources, Republican critics have pointed to reduced arrests and deportations and warned that the guidance can lead to the release of criminal illegal immigrants.
The guidance was dealt a blow this month when a federal judge imposed a preliminary injunction, ruling that the policy was in violation of congressional mandates, and that Louisiana and Texas, which filed the lawsuit, were likely to succeed in their claim that the policy violated the Administrative Procedures Act (APA.)
The lawsuit by Louisiana and Texas argued that narrowing arrests would cause their states harm and that also the guidelines are in breach of congressional mandates that order the detention of all criminal illegal immigrants.
Hagerty referenced the legal ruling as he asked the GAO if it would be eligible for review under the Congressional Review Act — legislation that gives Congress the power to overturn a federal rule in certain circumstances. If the GAO finds that a rule should first have been submitted to Congress, then lawmakers can bring it up for a vote to overturn it.
Hagerty claims, similar to the arguments made in the recent lawsuit, that the memo effectively overrides federal statutes that “require detention of certain illegal aliens, including aliens convicted of serious drug offenses, crimes of moral turpitude, and certain other crimes, as well as aliens subject to a final order of removal.
“Yet the Memoranda require the deprioritization of detention of some illegal aliens within those same categories — despite that their detention is required under law — and that ICE agents obtain case-by-case preapproval from leadership, based upon several discretionary factors being doing what the law requires.”
Hagerty argues that the guidance turns a statutory requirement demanded by Congress into a discretionary option: “The result is that criminal illegal aliens who would otherwise be detained will not be detained, and taxpayers and governments will be impacted in myriad ways.”
A GAO spokesperson told Fox News that the office had received the request and will be issuing an opinion, but that there was not yet a timeframe for when.
The legal battle over the ICE guidance is the latest challenge to the Biden administration’s agenda on immigration — as it faces increasing political pressure over the massive numbers of migrant apprehensions each month, which even Biden officials have conceded is “unsustainable.”
Last week, the Supreme Court refused to stay an order that forces the Biden administration to reimplement the Trump-era “Remain-in-Mexico” policy which kept migrants in Mexico as they awaited their hearings, and was ended by the new administration.