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Brnovich sues Dep't of Homeland Security over deportation pause

In a lawsuit filed Wednesday, Attorney General Mark Brnovich said the Biden administration can’t temporarily pause deportations because he signed an agreement with the U.S. Department of Homeland Security in the final days of the Trump administration that gives him broad powers to block changes in how the federal government enforces federal immigration laws.

When President Joe Biden’s administration took over, the agency issued a memorandum pausing most deportations for 100 days. That directive went into effect Jan. 22, but was temporarily suspended from implementation by a federal judge in Texas.

The DHS agreement with Arizona was approved during Trump’s final week in office. On Tuesday, Acting DHS Secretary David Pekoske terminated that agreement. A judge in Texas had called a nearly identical agreement in that state one containing grave issues of “constitutional import.”

Brnovich’s lawsuit makes the same basic legal claims as the Texas case: that the pause on some deportations affects local public safety budgets, and that such change in immigration enforcement violates federal law and a state agreement with DHS.

“As a border state, Arizona is acutely affected by modifications in federal policy regarding immigration,” Brnovich said in the legal challenge. “Arizona is required to expend its scarce resources when DHS fails to carry out its statutory duty to deport aliens as provided by law.”

The DHS memo that would pause deportations excludes migrants who entered the country after Nov. 1, 2020; people released from local or state custody for “aggravated felony” convictions; and “individuals who have engaged in or are suspected of terrorism or espionage.”

It is unclear how many people set to be deported were released from custody by U.S. Immigration and Customs Enforcement, the agency charged with arresting, detaining and deporting noncitizens, under the DHS directive before U.S. Federal Judge Drew Tipton issued a temporary restraining order on Jan. 26 blocking enforcement of the memo for 14 days.

In the lawsuit, Brnovich added that he is concerned that releasing people from federal immigration custody would strain the state’s hospital system dealing with the COVID-19 pandemic.

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Brnovich asked for the court to prohibit DHS from implementing the memorandum, to declare it unlawful and an “arbitrary and capricious” action.

DHS terminates last-minute agreement, Brnovich uses it as grounds to sue

As grounds for the lawsuit, Brnovich used an agreement he signed with the outgoing DHS head days before the Biden administration was inaugurated.

The “Sanctuary for Americans First Enactment (SAFE) Agreement” allows Brnovich to have 180 days to respond to proposed changes to various aspects of immigration and enforcement by DHS and the agencies it oversees — including who it arrests, detains and releases; who gets to claim asylum; and any changes to immigration benefits or eligibility of immigration benefits.

In response to a Jan. 26 letter from Brnovich requesting compliance with the SAFE Agreement, Acting Secretary of DHS David Pekoske said the “purported” agreement is “void, not binding, and unenforceable.”

He immediately terminated the agreement.

Brnovich wrote in the lawsuit if the DHS memo is allowed to stand, the federal government could reinstate the deportation paus past the 100-day period or “even indefinitely.”

“The Constitution and controlling statutes prevent such a seismic change to this country’s immigration laws by mere memorandum,” he said.

This report was first published by the Arizona Mirror.

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Jerod MacDonald-Evoy/Arizona Mirror

Arizona Attorney General Mark Brnovich speaking after being sworn into office in January 2019. Brnovich claims an agreement with the U.S. Department of Homeland Security signed in the final days of the Trump administration gives him broad powers to block changes in how the federal government enforces federal immigration laws.