Arizona AG demands Biden roll back deportation halt, but validity of Trump admin deal is questioned

Arizona's Attorney General Mark Brnovich demanded the Biden administration stick to an agreement signed by Homeland Security officials in the final days of the Trump administration, which requires the federal government to consult state officials before implementing new immigration policies.

In a letter to David Pekoske, the acting secretary of the Department of Homeland Security, Brnovich cited the agreement he signed in December with DHS that requires federal officials to "consult" with his office "before reducing immigration enforcement, pausing removals, or declining to decrease the number of removable aliens residing in the United States." 

The agreements were first uncovered by BuzzFeed News, which reported that Ken Cuccinelli, in his role as acting official at DHS, signed the agreement with Arizona, Louisiana, Indiana, and the Rockingham County Sheriff’s Office in North Carolina.

Brnovich claims the deal ties the hands of the new president on immigration policies — but its validity has been questioned, as a judge has found that Trump did not lawfully appoint Cuccinelli to run Homeland Security.

Brnovich signed the document on Dec. 20, 2020, and was followed by Cuccinelli who signed it on Jan. 8, 2021. Brnovich said in his letter that DHS is "obligated to provide 180 days' written notice," as well as consider the Arizona AG's input, "and provide a detailed written explanation of the reasoning behind any decision to reject AZAGO's input before taking any such action." 

In his letter, Brnovich argued the document, called the "Sanctuary for Americans First Enactment," was violated when President Joe Biden ordered a 100-day moratorium.

Just hours after his inauguration last week, Biden launched several immediate changes to U.S. immigration and border policies including an order to halt border wall construction, the end of what has often been termed the "Muslim Ban," and an expansion of Deferred Action for Childhood Arrivals, or DACA. Biden also ordered a pause on deportations, set to begin on Friday, Jan. 22 for "certain non-citizens ordered deported." 

In a memo to DHS staff, Pekoske wrote that DHS will "pause removals for certain noncitizens ordered deported to ensure we have a fair and effective immigration enforcement system focused on protecting national security, border security, and public safety."

Days later, the state of Texas filed a lawsuit led by staunch border hawk and Trump supporter Ken Paxton, the state's attorney general. 

On Wednesday, U.S. District Judge Drew Tipton agreed with Paxton, and issued a temporary restraining order, effectively pushing DHS to continue deportations even as the agency attempts to draw up new guidance on priorities for enforcement, as the agency tries to draw down Trump-era rules and a morass of new rules and guidances that have been repeatedly, and successfully challenged by immigration advocacy groups. 

As part of the lawsuit, emails from officials in Houston with U.S. Immigration and Customs Enforcement were uncovered showing a state of confusion about the order, and signs that a Fox News show is looking into it. The "assistant officer in charge" of ICE's Houston Field Office tells "all" in an email with the subject line "effectively immediately," that ICE officials should at midnight "stop all removals." 

"This includes Mexican bus runs, charter flights and commercial removals (until further notice.)" the agent wrote. "Release them all, immediately," the agent writes. However, within hours another official snaps back," Retract this directive immediately. Please direct your supervisors to follow the memorandum issued." 

"Operational guidance is being developed and will be issued in the coming days. At this point we are going to be following the directive as closely to the letter as possible. Any questions on removals, releases, and/or arrests that we cannot determine fit squarely into the directive will be forwarded up through me to HQ for further discussion and decisions," the ICE official wrote. 

In his letter, Brnovich asks DHS to "immediately rescind the memorandum as it applies to 'pausing' the removal of aliens charged or convicted of crimes in Arizona." 

"This avoidance of DHS's obligation to enforce federal  immigration law-particularly to discontinue processing the removal of persons who have been convicted of or charged with crimes-is unlawful, and will seriously harm law enforcement efforts and public safety in Arizona," he wrote. "Moreover, should such a directive be left unchallenged," Brnovich wrote, "DHS could attempt to renew it indefinitely, thus allowing the current Administration to unilaterally amend the immigration laws as applied to the vast majority of the removable or inadmissible aliens in this country without the required congressional approval." 

It is not clear whether DHS has released any immigrants in the U.S., much less in Arizona, nor is it clear that the agency has released people convicted or charged with crimes. Data from the Transactional Records Access Clearinghouse, a non-partisan project supported by Syracuse University, shows that around 15,444 people were in ICE detention as of Jan.  7, 2021. Of those people, about 28.4 percent had "no criminal record," TRAC wrote. And, historical data shows that among detainees in ICE custody, most are charged with immigration violations, and only a very few have serious criminal convictions. 

"We further request that, consistent with the recent order entered by Judge Tipton, you provide (the Arizona Attorney General's Office) with data of 'the number of individuals in custody that were subject to an Order of Removal who have been released from custody in the United States since Friday January 22, 2021 and the locations from which they were released,'" Brnovich wrote.

DHS officials would not comment on the Brnovich's letter, but instead referred comments to the White House. 

"It will be clear that this measure was wholly appropriate in ordering a temporary pause to allow the agency to carefully review its policies, procedures, and enforcement priorities—while allowing for a greater focus on threats to public safety and national security," said the White House in a written statement.

And, questions remain about Cuccinelli's ability to sign the agreement.

In the document signed by Cuccinelli, "the undersigned represent that they are authorized to execute this Agreement on behalf of CBP, ICE, USCIS, and Agency, respectively."

However, in March 2020, U.S. District Court Judge Randolph Moss ruled that Cuccinelli was not lawfully appointed to serve as acting director, and he lacked the authority to issue two directives on asylum. 

Similarly, the Government Accountability Office found in its own review that Cuccinelli, and the acting director of DHS Chad Wolf, were not legally appointed, and both men were violating federal law which guides how people are appointed to lead the agency. 

DHS later attempted to circumvent the issue with a legal workaround, claiming that another official was in charge of DHS, and then appointed Wolf to the agency's lead, however, a federal judge also rejected that argument in a separate ruling.