Arizona Attorney General Mark Brnovich Wins Lawsuit to Stop Biden’s Lawless Immigration Policy

PHOENIX – Today, the United States District Court, in Arizona v. Biden, granted a preliminary injunction to stop the implementation of the U.S. Department of Homeland Security’s (DHS) dangerous ‘Guidelines for the Enforcement of Civil Immigration Law’ (Permanent Guidance). The immigration policy would have halted nearly all deportations, even for those convicted of crimes, and drastically tied the hands of immigration officers. Attorney General Mark Brnovich co-led this lawsuit with the attorneys general from Ohio and Montana.

"This is a tremendous victory for the rule of law and the safety of our communities,” said Arizona Attorney General Mark Brnovich. "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."

In the order, the federal court found that DHS’s Permanent Guidance was unlawful for two reasons: “First, it displaces § 1226(c)’s mandate that ‘criminal aliens’ are to be detained based on the nature of their convictions pending their removal proceedings for a balancing test based on factors Congress did not intend for it to consider. Second, DHS authorizes Enforcement and Removal Operations (ERO) officials to make removal decisions under the Permanent Guidance’s balancing test and, in effect, introduces a non-statutory exception to § 1231.”

In the coalition's original filing, they argued the Permanent Guidance is in direct violation of federal law (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. Under DHS’s nonenforcement policy, ICE was no longer categorically removing migrants with final removal orders within 90 days, if ever, even if they had dangerous convictions. There are more than 1 million individuals with final removal orders currently in the U.S.

The coalition also made the case that the Permanent Guidance doesn’t make sense because DHS failed to consider the serious problems the policy will cause. For example, the Permanent Guidance does not even consider the serious risk of recidivism among criminal migrants who are released into Arizona’s communities. Additionally, the Permanent Guidance does not take into account the costs to the states, which will have to spend precious taxpayer dollars on increased costs for law enforcement and social services.

Under the Permanent Guidance, ICE was no longer transferring most deportable migrants from local prisons to ICE custody when they were set to be released from jail, even though it is required by law (8 U.S.C. § 1226). Instead, ICE was releasing migrants into communities in Arizona and at the cost of taxpayers through community supervision. When DHS implemented a similar policy earlier this year, called the Interim Guidance, 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 coalition 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. More than 1.7 million migrants were encountered along the southwest border in fiscal year 2021, the highest total ever recorded – and hundreds of thousands of ‘gotaways’ who escaped apprehension. Sadly that trend is continuing.  Just last month, U.S. Border Patrol encountered more than 164,973 migrants at the southwest border, compared to 101,099 in February 2021 and 36,687 in February 2020. Almost one million migrants have been apprehended across the southern border in the first five months of fiscal year 2022. Dangerous and deadly drugs are pouring into the country at rates never seen before, and they are making their way into communities across the country day by day.

Copy of Preliminary Injunction here