U.S. District Court Judge Susan Bolton denied Arizona Attorney General Mark Brnovich’s request to require timely deportations from federal authorities. Federal law states that authorities must deport illegal immigrants within 90 days.
In the ruling, issued last Wednesday, Bolton conceded that the law does require deportations within 90 days at first glance. However, Bolton explained that closer inspection of the law and history rendered its intent dubious.
As a first point, Bolton claimed that the word “shall” within the law doesn’t indicate a mandate.
Under 8 U.S.C. § 1231(a)(1)(A), ‘[e]xcept as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days.’ Plaintiffs argue that in this context ‘shall’ means ‘must.’ […] Under that reading, Plaintiffs continue, there is no discretion for the Government to apply, meaning Congress has provided the guidelines needed to rebut the presumption of non-reviewability. […] At first glance, it appears that Plaintiffs may have a point based on the plain language used in the statute. The statute uses unequivocal language seeming to mandate removal within 90 days, thereby limiting the ‘broad discretion exercised by immigration officials.’ […] However, a blanket ‘shall’ does not automatically constitute a statutory mandate, especially when it concerns the enforcement of laws. […] Instead, ‘a true mandate of police action would require some stronger indication’ from Congress than simply placing the word ‘shall’ in the legislative command. (emphasis added)
Bolton followed up with an assessment of the law’s context. She considered surrounding provisions that allowed ICE to grant stays of removal requested by noncitizens. Therefore, Bolton said, there was no proof that the law means 90 days if it also had a provision allowing noncitizens to be supervised under stays of removal past 90 days.
The judge also cited Supreme Court precedent in Reno v. American-Arab Anti-Discrimination Committee, in which the court decided that the federal government has discretionary powers over the timeliness of deportations, and Zadvydas v. Davis in which the court doubted the lawmakers believed that all deportations could possibly be accomplished within 90 days.
As a final point, Bolton stated that the legislative history of the law characterized the 90 days deadline as a “target” rather than a mandate.
It was for those reasons that Bolton denied Brnovich’s argument that lawmakers intended the 90-day deportation deadline enshrined in law to be mandatory.
Brnovich appealed on Friday. He cited a new Supreme Court precedent established one day before Bolton’s ruling – last Tuesday – in which the court interpreted “shall” as mandatory language in Johnson v. Guzman Chavez. That Supreme Court case also dealt with the same question of deportation law as administered by the Department of Homeland Security (DHS). The court dismissed the notion that the surrounding provisions of the law rendered the 90 day requirement moot.
“Once an alien is ordered removed, DHS must physically remove him from the United States within a 90-day ‘removal period,'” read the opinion. “[T]he most natural reading of the ‘except as otherwise provided’ clause is that DHS must remove an alien within 90 days unless another subsection of § 1231 specifically contemplates that the removal period can exceed 90 days. That aligns with the rest of § 1231, which contains specific provisions mandating or authorizing DHS to extend detention beyond 90 days.”
Brnovich initially filed the complaint in February, following an order from DHS Secretary Alejandro Mayorkas to halt nearly all deportations in its “Immediate 100-Day Pause on Removals.” Brnovich took issue with DHS’s argument that the law is optional because it’s dependent on their interpretation.
“Federal law on this issue is clear: ‘[W]hen an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days.’ […] But, in Defendant’s view, ‘shall’ does not really mean ‘shall’ or ‘must,’ but instead merely ‘may,'” wrote Brnovich. “In other words, despite a clear mandate of federal statutory law, Defendants believe that there are literally no constraints whatsoever on their authority, and they may release individuals, including those charged with or convicted of crimes, even when immigration courts have already ordered their removal from the United States.”
Bolton has consistently denied Brnovich’s appeals to uphold immigration law this year. In April, Bolton refused to order a preliminary injunction on the 100 day deportation pause.
The court has yet to submit a response to Brnovich’s appeal.
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