A federal district court judge agreed with Arizona Attorney General Mark Brnovich and two other attorneys general, granting their request for a preliminary injunction to stop a new DHS policy under the Biden administration which halted nearly all deportations. In Arizona v. Biden, Ohio District Court Judge Michael J. Newman stopped the implementation of the “Guidelines for the Enforcement of Civil Immigration Law” (Permanent Guidance) due to violating existing federal law. He also denied DHS’s motion to dismiss the lawsuit.
“This is a tremendous victory for the rule of law and the safety of our communities,” said Brnovich in a statement. “Since assuming office, the Biden administration has undermined our immigration laws and our law enforcement agencies, while empowering dangerous cartels and criminals on both sides of the border. I’m grateful for this ruling and for the partnership of Ohio and Montana as we work to reverse this catastrophic lawlessness.”
The policy, which was made permanent in September, limited ICE’s focus on arrests and deportations to recent border crossers, public security threats, and national security threats.
In his 79-page ruling, Newman found that the DHS policy violated 8 U.S.C. § 1231, which requires U.S. Immigration and Customs Enforcement (ICE) to remove an individual who has received a final deportation order within 90 days. Not only did not DHS fail to remove them within 90 days, but sometimes not at all, and many of them had dangerous convictions. Brnovich noted that “There are more than 1 million individuals with final removal orders currently in the U.S.”
Newman found that the DHS policy also violated 8 USC § 1226(c), by adding a balancing test instead of simply detaining migrants pending removal proceedings. Instead of transferring deportable migrants from prisons to ICE custody for deportation, ICE released them into the community.
He criticized DHS for interpreting “shall” in the statutes as “may.” He chided the agency for taking an overly expansive interpretation of the Supreme Court’s recognition that DHS has plenary authority to enforce the immigration laws. “At bottom, this is what this dispute is about: can the Executive displace clear congressional command in the name of resource allocation and enforcement goals? Here, the answer is no.”
Brnovich and the attorneys general from Ohio and Montana cited the “serious risk of recidivism among criminal migrants who are released into Arizona’s communities.” They “argued that the Biden administration’s Permanent Guidance will further incentivize illegal immigration and worsen the border crisis, including the crisis of dangerous fentanyl flowing across the border.”
Over 1.7 million migrants were confronted along the southwest border in 2021, the highest number ever recorded in a year. Yet only 59,011 were deported during the 2020-2021 Fiscal Year, which ended in September. In contrast, 185,884 were deported in 2020 under the Trump administration.
Brnovich led 15 other attorneys general in an amicus curiae brief last August against the Biden administration requesting to halt the “Interim Guidance” policy of not enforcing laws against illegal immigration when it comes to crime. He said, “not only were immigration arrests and deportations slashed but removable criminal migrants were also released from jails. Some of the convictions included arson, armed robbery, misconduct involving weapons, and aggravated DUI.” The federal judge handling the case enjoined the Interim Guidance, but has not ruled on it yet.
The Biden administration has suffered multiple defeats attempting to loosen up border security. Earlier this month, a federal judge agreed with a lawsuit filed by the state of Texas, ordering the federal government to stop releasing unaccompanied minors by exempting them from Title 42 of U.S. immigration law, which permits the government to immediately expel illegal immigrants for health reasons.
In another defeat, due to losses at the appellate court level, the Biden administration reinstated the Trump-era “Remain in Mexico” policy, which requires asylum seekers who reach the U.S. border through Mexico to wait in Mexico for their hearings, not in the U.S.
In February, Brnovich issued a legal opinion declaring that Arizona can take action on its own regarding the border crisis since it constitutes an “invasion” under the U.S. Constitution. He has sued the Biden administration multiple times over border security, and he called on DHS Secretary Alejandro Mayorkas to resign last month.
– – –
Rachel Alexander is a reporter at the Arizona Sun Times and The Star News Network. Follow Rachel on Twitter. Email tips to [email protected].
