PHOENIX – Arizona’s Attorney General’s Office (AGO) has amended its February 3rd lawsuit against the U.S. Department of Homeland Security (DHS) over its immigration policy that halts nearly all deportations for 100 days, even for those charged with or convicted of crimes.
Montana Attorney General Austin Knudsen has also joined the Arizona lawsuit on behalf of the State of Montana. Arizona and Montana also filed a motion for preliminary injunction asking the court to stop the DHS policies from being implemented.
The original complaint challenged the DHS Memorandum issued on the first day of the Biden Administration, called the “immediate 100-day Pause on Removals.” In addition to the DHS policy, Arizona and Montana are also now challenging the “Interim Guidance” issued by the Acting Director of ICE on February 18, 2021, which tries to supersede the original Memorandum but does not substantively change the policy to pause nearly all deportations of those who entered the country before November 1, 2020.
The amended complaint alleges that the original Memorandum and the Interim Guidance were promulgated without providing notice to Arizona and Montana, in violation of each State’s Memorandum of Understanding (MOU) with DHS. Additionally, both policies are in direct violation of federal law, 8 U.S.C. § 1231, that requires an alien, who has received a final deportation order, to be removed from the United States within 90 days.
The DHS Memorandum states it is to be in effect for 100 days, and the Interim Guidance states it is to be in effect for 90 days, but no apparent limiting factor is explained. If this action is permitted to stand, DHS could implement these polices for a longer period or even indefinitely, thus allowing the current Administration to unilaterally amend immigration laws without the required congressional action.
Law enforcement officials also are telling the Attorney General’s Office (AGO) that DHS is releasing undocumented aliens without testing them for COVID-19. Many are worried hospitals and medical centers, which have been operating at or near full-capacity due to the pandemic, could be overwhelmed. Possibly even more disturbing, the AGO has learned DHS is releasing potentially dangerous individuals without any coordination with local law enforcement.
The preliminary injunction notes that DHS did not engage in any prior consultation with anyone—inside or outside the federal government—about the anticipated effects and costs of the Removal Moratorium, including the number of aliens with final removal orders who will be released from ICE custody and the detrimental impacts on public safety, health, and state and local finances from such releases. Further, DHS made no attempt to follow the Administrative Procedure Act’s notice-and-comment procedures in issuing the Memorandum/Removal Moratorium.
The motion includes declarations from Pinal County Sheriff Mark Lamb, Cochise County Sheriff’s Office Chief of Staff Mark Napier, President for the Yuma Medical Center Dr. Robert Trenschel, and Administrator of the Division of Criminal Investigation at the Montana Department of Justice Bryan Lockerby. These declarations illustrate the harms Arizona and Montana will suffer under the new DHS policies, including unreimbursed costs related to incarceration and healthcare costs.