Federal judge denies Brnovich injunction in deportation pause lawsuit

By: - April 9, 2021 1:36 pm

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A federal judge in Arizona on Thursday said she’ll deny a request from Attorney General Mark Brnovich to issue a preliminary injunction prohibiting the federal government from enforcing a temporary pause on deportations. 

That pause, issued on Jan. 20, 2021, is known as the 100-day deportation moratorium and has been held from implementation since a Texas court issued a temporary restraining order on Jan. 26

On Feb. 2, Brnovich filed a lawsuit also seeking a preliminary injuction on the deportation pause, which excluded 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.” 

In a hearing Thursday morning, Judge Susan Bolton of the Phoenix district court said Arizona’s request for the preliminary injunction on the deportation pause is moot. 

Anthony Napolitano, representing Arizona, had a hard time explaining to Bolton why a preliminary injunction over the 100-day deportation pause, which is not in effect, was necessary. 

He then told Bolton he believes the Department of Homeland Security is violating the Texas court order that bars federal agents from enacting the deportation pause. 

“We need this so we can pursue potential claims for contempt against DHS for not following this policy,” Napolitano said.

He briefly referenced a case in Florida, where ICE has denied seven custody transfer requests, known as detainers, from the Florida Department of Corrections. Last week, Florida Governor Ron DeSantis claimed that ICE is not taking custody of people convicted of criminal felonies after they were released from state prisons. 

“We believe these same issues are arriving in Arizona,” Napolitano said. 

Bolton said that is not an argument that Arizona has presented in any of its court documents in the lawsuit, but she allowed the state to continue exploring that claim. 

Bolton said she’d consider whether a preliminary injunction is warranted for a DHS guidance from February on immigration enforcement.

That guidance, titled Civil Immigration Enforcement and Removal Priorities and signed on Feb. 18 by Tae Johnson — the acting director of US Immigrations and Customs Enforcement —  outlines how ICE will prioritize deportations. The priorities include those who have “engaged in or are suspected of terrorism or espionage” or other national security threats; those arrested after crossing the border between ports of entry after Nov. 1, 2020; and people who are a “presumed to be a threat to public safety,” including those convicted of aggravated felonies. The guidance, which is temporary, still gives ICE agents discretion to pursue deportations for people who don’t fall in those categories.

In an amended complaint to the original lawsuit, Arizona is said the 100-day deportation pause and the February guidance on enforcement have a combined effect of violating a law on how government agencies issue regulations and immigration law.  Brnovich is also seeking to prohibit the federal government from implementing a DHS guidance on immigration enforcement issued on Feb. 18. 

By asking the court to prohibit the federal government from implementing that guidance, Arizona is essentially seeking for immigration enforcement to revert back to the Trump administration’s policy of considering anyone who violated civil or criminal immigration statutes a priority for deportation.  

The state of Montana joined the Arizona Attorney General as a party to the lawsuit. 

At the hearing Thursday, the judge said Arizona is mistaken to treat the 100-day deportation pause and the February guidance as one in the same. 

Still, Bolton allowed the further briefing and discovery, with depositions, to take place to explore whether a preliminary injunction is necessary. 

U.S. Department of Justice attorney Michael Knapp said Arizona and Montana had not shown they will suffer “irreparable harm” if a prohibition on enacting the guidance wasn’t ordered by the court. Still, Bolton allowed for the case to move forward. 

“I’m not rejecting (Napolitano’s) arguments,” she said. “They have not been fully developed yet.”

Brnovich: Arizona faces medical costs

In the lawsuit, Brnovich’s attorneys argue Arizona will suffer “irreparable harm” from a change to immigration enforcement priorities because the state has to provide emergency medical care to people regardless of immigration status. The state argues that it costs to provide emergency healthcare for people who could’ve been deported. 

In a declaration that Arizona filed to support its argument, Robert Trenschel, president and CEO of the Yuma Regional Medical Center, detailed the costs of care for migrants serviced at the non-profit private hospital. Trenschel said in a six-month period in 2019, the hospital served about 1,300 adults who were in ICE custody. That cost about $810,000, and the federal government reimbursed a third of that expense, he said. 

State attorneys also said in court documents that the deportation pause — which isn’t in effect — incentivizes migration, forcing law enforcement agencies near the border to spend resources to collaborate with federal agencies to arrest and detain migrants. 

In several TV interviews, Brnovich has said he believes the Biden administration is sending signals to migrants directing them to arrive at the U.S.-Mexico border. Why people migrate to the U.S. is more complicated than just a change in federal enforcement policies, experts agree

In court documents, Brnovich’s attorneys said that increased migration will result in more migrants dying when attempting to cross the border. Brnovich’s office argues that will cause the state “irreparable harm” because that local law enforcement agencies will spend resources in “recovering the remains, investigating the death, which must be treated as a potential homicide, and engaging the Office of the Medical Examiner in the investigation.”

Brnovich recently has aligned his rhetoric with immigration hardliners as unprecedented numbers of migrant children and teens arrive at the border and are being received by unprepared federal entities. In a letter inviting Vice President Kamala Harris on a border tour, Brnovich said he recently learned that “more than 300 individuals in federal custody … were turned loose in Arizona communities without any coordination with local law enforcement.” He then added that practice is “dangerous and misguided.”

Spokespeople for Brnovich’s office did not respond to an Arizona Mirror inquiry on who was the source of that information, where those individuals were released and why Brnovich believes they should have remained in federal custody. 

Last-minute agreement between Trump and and Arizona in question

On Thursday, Bolton also hinted that Arizona attorneys should reconsider whether the state wants to rely on an agreement Brnovich signed with DHS days before President Joe Biden took office. The agreement, called the “Sanctuary for Americans First Enactment,” gives Arizona broad powers to block changes in how the federal government enforces federal immigration laws.

In a separate lawsuit, immigrant rights groups claim that agreement is invalid and unconstitutional. They allege that Ken Cuccinelli, then deputy secretary of DHS who signed the agreement, lacked the authority to enter into the SAFE Agreement and bind the federal government to it.  

The groups claim that, if the agreement is allowed to stand, “Arizona will be able to hamstring the federal government’s authority over the Nation’s immigration policies.” 

Bolton said she considers the questions around Cuccinelli’s authority “a significant issue to the extent the state wishes to rely for evidentiary purposes or argument purposes” on the SAFE Agreement. 

DOJ attorneys have requested for that lawsuit to be consolidated with Brnovich’s suit.

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Laura Gómez
Laura Gómez

Reporter Laura Gómez Rodriguez covers state politics and immigration for the Arizona Mirror. She was named Best Investigative Reporter by Phoenix Magazine in its 2018 newspaper category and has been honored by the Arizona Press Club for education, immigration, political, and public safety reporting and Spanish-language news and feature reporting. Laura worked for The Arizona Republic and La Voz Arizona for four years, covering city government, economic development, immigration, politics and trade. In 2017, Laura traveled the length of the U.S.-Mexico border for “The Wall,” the Pulitzer Prize-winning project produced by The Arizona Republic and USA Today Network. She is a native of Bogotá, Colombia and lived in Puerto Rico and Boston before moving to Phoenix in 2014. Catch her researching travel deals, feasting on mariscos or playing soccer.

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