SCOTUS Preserves Biden Administration’s Policies on Immigration Enforcement

On June 23, 2023, the U.S Supreme Court denied a challenge to President Biden’s immigration enforcement guidelines, declaring that the Executive Branch is entitled to set its priorities for arresting and removing immigrants. The vote was 8-1, with Justice Samuel Alito being the lone dissenter. The Court reasoned that the state challenges for more arrests and prosecutions are contrary to the constitutional authority vested in the executive branch to enforce federal law. As noted in the majority opinion, neither Democratic nor Republican administrations have sufficient resources to physically remove the millions of unauthorized immigrants currently present in the country. It is unclear how enforcement and prosecutorial discretion will change as a result of this decision. Anecdotally, ICE attorneys have not consistently followed the Biden Administration’s guidelines for exercising prosecutorial discretion. There also appears to be inconsistencies among certain offices, with some locations being more willing to join in on motions to terminate proceedings, whereas other offices will only do so in extraordinary circumstances, and rarely make legal stipulations to relief.


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