Texas and Louisiana filed suit against the federal government Tuesday in the US District Court for the Southern District of Texas, alleging that immigration authorities declined to take custody of convicted individuals who could be subject to deportation. According to the lawsuit, the government’s action violates federal law and the US Constitution.

In Texas, when the Department of Criminal Justice incarcerates an undocumented immigrant who was convicted of a felony criminal offense, the department informs the US Immigration and Customs Enforcement (ICE). ICE can then send a detainer request to the department if the undocumented immigrant should be deported following his sentence, which would result in the department keeping the individual in custody. Louisiana follows a similar procedure, where undocumented immigrations convicted of felony criminal offenses may be held in a state prison or a local Parish prison.

The US Department of Homeland Security (DHS) and ICE published memoranda in January and February. The memoranda created three priority categories: national security, border security, and public safety. ICE has focused on these categories in determining whether an individual is considered a “removal priority.”

The lawsuit filed Tuesday alleges that the Biden administration has “issued and implemented unlawful agency memoranda that allow criminal aliens already convicted of felony offenses to roam free” in the US. This has allegedly violated the Immigration and Nationality Act, the Administrative Procedure Act (APA), the US Constitution, and contracts between DHS, Texas, and Louisiana.

According to the complaint, ICE has declined to take custody of undocumented immigrants following the inauguration of the Biden administration. The government memoranda were issued without notice and comment and allegedly do “not prioritize detention of criminal aliens with final orders of removal, criminal aliens convicted of drug offenses, or criminal aliens convicted of crimes of moral turpitude.” Because of this, the two states face “significant harms” from DHS’s and ICE’s failure to detain criminally convicted undocumented immigrants subject to deportation.

The suit asks the court to find sections of the memoranda unlawful and to set them aside, as well as to issue preliminary and permanent injunctive relief. The states also are asking the court to compel DHS to take custody of the undocumented immigrants.