Texas AG admitted his state's immigration charge against Biden admin violated Constitution, lawyers say

As Louisiana and Texas filed lawsuits against the Biden administration on Tuesday, experts quickly noticed a number of issues about the legal filing.

According to Law & Crime, one of the most glaring issues centers on Texas Attorney General Ken Paxton's (R) apparently admitting that the state of Texas is currently violating immigrants' constitutional rights. The lawsuit, which was filed by Paxton, includes a litany of complaints about Acting U.S. Immigration and Customs Enforcement's (ICE) Director Tae Johnson's expansion and reduced enforcement priorities which led to ICE no longer detaining immigrants facing convictions for minor offenses.

The change in the Biden administration's guidance, which is in contrast with both former Presidents Donald Trump and Barack Obama's guidance, "calls for ICE to detain immigrants convicted of 'aggravated felonies' with the intent to initiate deportation proceedings."

"The January 20 Memorandum and the February 18 Memorandum are unlawful because they violate 8 U.S.C. § 1226," Paxton's lawsuit claims. "This mandatory duty to take criminal aliens into custody applies to those completing their sentences for crimes relating to controlled substances, those involving moral turpitude, and others."

According to Paxton, Biden's February order was "unlawful because it has resulted in ICE rescinding 'several detainer requests' that were previously issued."

"President Biden's outright refusal to enforce the law is exacerbating an unprecedented border crisis," the attorney general added in a statement. "By failing to take custody of criminal aliens and giving no explanation for this reckless policy change, the Biden Administration is demonstrating a blatant disregard for Texans' and Americans' safety."

However, legal experts are pushing back. Aaron Reichlin-Melnick, who works as policy counsel for the American Immigration Council, took to Twitter to highlight his grievances about Paxton's lawsuit.

"You can't sue a prosecutor for using their discretion not to prosecute someone — same goes for immigration," he tweeted. "Imagine if Texas sued the Department of Justice for not raiding recreational dispensaries in California, since of course legal products make their way to Texas. Same thing."

Immigration attorney Diego J. Aranda Teixeira also weighed in with similar concerns. "Paxton is here saying that it is illegal for the United States government to not issue detainers for people once they are released from jail or prison following a sentence after being convicted of a crime,"Teixeira told Law & Crime. "However, at paragraph 2 [of the lawsuit], even Paxton concedes that it is optional for the federal government to ask for detainers to keep people under custody."

That section of the lawsuit reads:

When the Texas Department of Criminal Justice ("TDCJ") incarcerates an alien already convicted of a felony criminal offense, it informs U.S. Immigration and Customs Enforcement ("ICE"). If, pursuant to federal law, the alien should be removed from the United States when his sentence expires, ICE can send TDCJ a detainer request. Upon receiving such a request, TDCJ will hold an alien instead of releasing him into the community

The arguments go a step further suggesting Louisiana and Texas may be keeping immigrants "in lieu of such detainer requests."

"[ICE] rescinded detainer requests for aliens convicted of [certain] offenses," the lawsuit continues. "As a result, many convicted criminal aliens have been released to society after their sentences, contrary to Congress's mandate that they be detained pending their removal from the United States. Of course, the States of Texas and Louisiana must do what they can to protect their citizens, so some of these criminal aliens have remained in state custody at the State's expense."

With that, the lawsuit also appears to contain an admission that suggests authorities in the state of Texas "are violating immigrants' constitutional rights by holding them past their prison sentences because they disagree with political choices made by the Biden administration about deportation priorities."

"My interpretation of [the above-cited passage] was that they were admitting to illegally holding people past the time their sentences had ended, but I'm open to a less flagrantly unconstitutional interpretation if they mean something else," Reichlin-Melnick told Law&Crime. "I just can't think of anything else that they might possibly mean."

Teixeira noted that: "It is unlawful for Texas or Louisiana to detain people without authorization based on a criminal sentence or a detainer, but they admit doing so."

"Federal law requires Defendants to take custody of many criminal aliens, including those with final orders of removal, those convicted of drug offenses, and those convicted of crimes of moral turpitude," the lawsuit claims. "By refusing to take these criminal aliens into custody, Defendants have disregarded non-discretionary legal duties."

Reichlin-Melnick and other legal experts quickly noted that the excerpt from the lawsuit speaks volumes about the premise of it. "Just as criminal laws saying that the government 'shall' arrest people don't override prosecutorial discretion, so to do immigration laws saying that ICE 'shall' detain people not impose a truly mandatory requirement on ICE to do so," Reichlin-Melnick said. "ICE always maintains the ultimate power to decide not to deport or detain an individual person."