Hours after a federal judge in Texas wrote that agreement between the Department of Homeland Security and the attorney general there raises constitutional issues, Arizona Attorney General Mark Brnovich asked DHS to comply with a nearly identical agreement with his office related to immigration enforcement.
The Arizona agreement, called the “Sanctuary for Americans First Enactment (SAFE) Agreement,” was signed by Brnovich and Ken Cuccinelli, then the acting deputy secretary of DHS in the final days of the Trump administration. It says DHS will allow Brnovich to have a say 180 days before the federal agency makes changes to various aspects of immigration and enforcement — including who it arrests, detains and releases, who gets to claim asylum, and any changes to immigration benefits or eligibility of immigration benefits.
The agreement, which Buzzfeed reported DHS signed with other states, was seen as a last-ditch effort by the Trump administration to sabotage any immediate changes President Joe Biden made on immigration.
The agreement in Texas was part of the basis of a lawsuit filed this month challenging a 100-day pause on some deportations, which the Biden administration implemented through a DHS directive on Jan. 22.
The Texas and Arizona agreements are nearly identical.
On Jan. 26, U.S. District Judge Drew Tipton in Texas issued a temporary restraining order telling DHS to stop enforcing the pause on deportations because it violates a federal law that broadly says people ordered deported have to be removed in 90 days. Tipton also said the change was “arbitrary and capricious,” but he noted the agreement was problematic.
“The Court makes clear that this Order is not based on the ‘Agreement Between Department of Homeland Security and the State of Texas’,” Tipton said. “The issues implicated by that Agreement are of such gravity and constitutional import that they require further development of the record and briefing prior to addressing the merits.”
Hours later, Brnovich wrote to David Pekoske, acting secretary of DHS, requesting compliance with the SAFE Agreement and asking for the DHS directive halting some deportations to be rescinded. He added that a temporary halt on deportations is “unlawful and will seriously harm law enforcement efforts and public safety in Arizona.”
Below is a letter we sent to DHS this morning regarding the President’s halt on nearly all deportations. This is illegal and a violation of our agreement with DHS. Collaboration with our federal partners is necessary to ensure the safety of Arizonans. https://t.co/NPtTc30G3X pic.twitter.com/8Mp3ahYOFD
— Mark Brnovich (@GeneralBrnovich) January 26, 2021
Tipton’s temporary restraining order on the deportation pause is effective for 15 days.
The DHS directive that pauses deportation was welcomed by immigration advocates who had pushed Biden to commit to halting deportations on the campaign trail.
DHS is still processing deportations for people 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.”
Pekoske said the pause was necessary for DHS to refocus its border resources “to rebuild fair and effective asylum procedures that respect human rights and due process, to adopt appropriate public health guidelines and protocols, and to prioritize responding to threats to national security, public safety, and border security.”
Critics: Brnovich playing politics with human lives
In his Jan. 26 letter, Brnovich said pausing deportations could lead to overcrowding of U.S. Immigrations and Customs Enforcement facilities that would force “the release of dangerous offenders into our State.” But ICE detention centers currently have a significantly smaller population of detained people because border crossings have plummeted during the pandemic and ICE has released hundreds of people from custody under its COVID-19 protocols.
While the number of people detained by ICE reached an all-time high in 2019 with more than 55,000 people held, there were about 14,000 people in ICE detention facilities as of Jan. 22, according to data analysed by Syracuse University’s Transactional Records Access Clearinghouse.
ICE is in charge of arresting, detaining and deporting people.
Brnovich also said the deportation pause had already led to “people charged with or convicted of felonies have been released without coordination with the appropriate court or probation department.” A spokesperson for his office didn’t provide additional details on that allegation, but said the information came from law enforcement agencies.
Brnovich’s desire to keep the status quo of Trump’s harsh immigration and asylum agenda isn’t a surprise, said Karina Ruiz, executive director of the Arizona Dream Act Coalition.
“It’s something that we anticipated happening,” she said. “This proves they never want to find a solution, they only want to advance the white supremacy agenda, which is deporting as many people as possible.”
Ruiz recently lost her father Mauro, who was undocumented, to complications from COVID-19. After flying to Oaxaca to bury his remains there, as he had wished, Ruiz flew to Washington, D.C., to attend the Biden inauguration. She and other ADAC members held a banner that day that said “Stop Deportations. Immigration Reform Now.”
“This is about humanity, about the dignity of people,” Ruiz said. “This is not about the rule of law. This is about human lives.”
She said that, unlike Brnovich, Biden and his administration understand why pausing deportations was crucial for immigrant families harmed by Trump’s hardline immigration stance.
“If (President Biden) himself thinks that the system is so broken that we need to pause, and we need to evaluate deportations and what’s happening in detention centers, it’s because he has heard immigrant stories first hand — he understands the need to hold this deportation machine,” Ruiz said. “We believe this administration is trying to repair that, while we figure out a system that is fair, is just, and is going to give people a chance to justice.”
On social media, Puente Human Rights Movement, an immigrants rights group that often denounces the collaboration between local law enforcement and federal immigration agents, called on the public to reach out to Brnovich to reject his Jan. 26 letter.
“It is clear to Puente that Brnovich believes in and will continue to defend police and ICE collaboration, creating a deportation machine that racially profiles people to question them on their immigration statuses,” said Isis Gil, a spokeswoman for Puente. “We must fight to protect our communities and dismantle anti-migratory policies and racist ideologies like those that Brnovich perpetuates.”
Ray Ybarra Maldonado, an immigration and criminal attorney in Phoenix, criticized the Brnovich agreement with DHS.
“You lost the election,” Ybarra Maldonado said in a video livestream explaining the Texas order. “The people, democracy gets to choose who we want to be in the executive, and prior executives don’t get to tie the hands of the administration that wins the popular vote and the electoral college vote from doing the will of the people. That’s ‘politricking’ 100%”