By Daniel Wiessner

(Reuters) – A U.S. appeals court on Wednesday said the Biden administration could continue to limit who can be arrested by U.S. immigration agents pending the outcome of its appeal of a federal judge’s ruling that blocked a memo outlining new enforcement priorities.

New Orleans-based Fifth U.S. Circuit Court of Appeals said the judge in Texas in an August decision https://www.reuters.com/legal/litigation/us-judge-blocks-bidens-limits-immigrant-arrests-deportation-2021-08-19 was likely wrong that federal law limits the discretion immigration authorities have to decide who should be arrested and placed into deportation proceedings.

The court of appeals blocked the decision of the judge from being implemented while the government appeal was pending.

U.S. Immigration and Customs Enforcement, (NYSE:ICE), has issued February guidance to agents that directs enforcement efforts towards immigrants deemed as national security threats or public safety threat and people who have entered the United States since Nov. 1, 2020.

To arrest an individual who doesn’t fall within one of the above categories agents need to get pre-approval from senior managers.

It was released shortly after Democratic president Joe Biden took office as Republican President Donald Trump’s successor. The directive provides guidance for agents who wish to arrest someone not falling within one of these categories.

The Republican attorneys general of Texas and Louisiana are challenging it. They claim that the guidance has resulted in dozens of convicted felons being freed into their respective communities, and places a burden on social services programs and local law enforcement.

ICE and state attorneys general offices did not respond immediately to inquiries for comment.

U.S. district judge Drew Tipton of Corpus Christi, Texas blocked the February guidance because it broke a federal law which required that government detain people who have committed certain offenses or were otherwise eligible for deportation.

On Wednesday, the 5th Circuit stated that this law applies only to those who have already been placed under detention or who were ordered to be deported. It does not cover the original decision about who should face enforcement.