AZ AG Requests DHS Comply With SAFE Deportation Agreements

SAFE: Sanctuary For Americans First Enactment Agreement

Border Wall

Last week, Texas Attorney General Ken Paxton filed a complaint and motion for temporary restraining order, asking a federal court to immediately halt the Department of Homeland Security’s (DHS) freeze on deportations of illegal aliens.

On Wednesday, the United States District Court for the Southern District of Texas granted a nationwide temporary restraining order halting implementation of the Biden Administration’s unlawful order to the Department of Homeland Security to freeze virtually all deportations of illegal aliens.

Shortly after the court’s decision, Arizona Attorney General Mark Brnovich announced in a tweet that his office sent a request to the head of the Department of Homeland Security asking the Department to honor previously made agreements.

According to Paxton, the Biden Administration “cast aside congressionally enacted immigration laws and suspended the removal of illegal aliens whose removal is compelled by those very laws. The move violates the U.S. Constitution, federal immigration and administrative law, and a contractual agreement between Texas and DHS.”

Paxton warned DHS that the Administration’s actions resulted in an abdication of DHS’s obligation to enforce federal immigration law, which would “seriously and irreparably harm Texas and its citizens.”

“In one of its first of dozens of steps that harm Texas and the nation as a whole, the Biden administration directed DHS to violate federal immigration law and breach an agreement to consult and cooperate with Texas on that law. Our state defends the largest section of the southern border in the nation. Failure to properly enforce the law will directly and immediately endanger our citizens and law enforcement personnel,” said Attorney General Paxton. “DHS itself has previously acknowledged that such a freeze on deportations will cause concrete injuries to Texas. I am confident that these unlawful and perilous actions cannot stand. The rule of law and security of our citizens must prevail.”

Arizona Attorney General letter to DHS:

I am writing to request that you comply with the Sanctuary for Americans First Enactment (SAFE) Agreement Between the U.S. Department of Homeland Security (“DHS”) and the Arizona Attorney General’s Office and Arizona Department of Law (collectively, “AZAGO”), which the parties entered into on or about January 8, 2021 (the “Agreement”). I am enclosing a copy of the Agreement for your reference.

On January 20, 2021, you ordered a blanket halt on nearly all deportations of removable or inadmissible aliens. Specifically, your memorandum directed DHS to impose “an immediate pause on removals of any noncitizen with a final order of removal [subject to limited exceptions] for 100 days to go into effect as soon as practical and no later than January 22, 2021.” 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.3 DHS itself has previously acknowledged that “a decrease or pause on returns or removals of removable or inadmissible aliens” “result[s] in direct and concrete injuries to [AZAGO], including increasing the rate of crime….” Agreement § II.

As the Chief Law Enforcement Officer for the State of Arizona, one of my duties is to ensure the protection of our State’s residents. The memorandum’s directive to pause deportations could lead to overcrowding at ICE facilities, forcing the release of dangerous offenders into our State. Additionally, it has come to our attention that people charged with or convicted of felonies have been released without coordination with the appropriate court or probation department. I am sure you can see how this is a serious and valid concern.

DHS agreed to consult with AZAGO before reducing immigration enforcement, pausing removals, or declining to decrease the number of removable aliens residing in the United States. See Agreement §§ II, III.A. DHS is also obligated to provide 180 days’ written notice, consider AZAGO’s input, and provide a detailed written explanation of the reasoning behind any decision to reject AZAGO’s input before taking any such action. See Agreement§ III.A.2-4.

Prior to issuing the memorandum, DHS did not contact AZAGO, much less comply with the notice and consultation requirements of our Agreement. Moreover, should such a directive be left unchallenged by AZAGO, 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.

This letter serves as notice that AZAGO believes DHS has violated the Agreement; it is not a comprehensive list of the AZAGO’s contentions regarding legal defects in the memorandum. See Agreement§ VIII. AZAGO would like to resolve this dispute, and we ask you to immediately rescind the memorandum as it applies to “pausing” the removal of aliens charged or convicted of crimes in Arizona. We further request that, consistent with the recent order entered by Judge Tipton, you provide AZAGO 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.”

AZAGO believes strongly that a collaborative effort with the federal government is necessary to ensure the safety of Arizonans. If the above concerns cannot be addressed in a timely manner, however, we will consider all legal options, including judicial resolution as contemplated by the Agreement. We look forward to your prompt response in a few days. Please respond to Chief Deputy/Chief of Staff Joe Kanefield at: Joe.Kanefield @azag.gov or 602-542-8080.

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