Attorney General Brnovich Seeks Confirmation Biden Administration Will Faithfully Defend Federal Immigration Statute

PHOENIX – Arizona Attorney General Mark Brnovich and Ohio Attorney General David Yost are leading a coalition of 20 attorneys general to ensure that the Biden Administration will faithfully defend a longstanding federal immigration statute that prohibits illegal reentry.

The attorneys general today sent a letter to U.S. Attorney General Merrick Garland  seeking written assurances by Sept. 17 that the U.S. Department of Justice (DOJ) will defend 8 U.S.C. § 1326, the law governing illegal re-entry. The letter follows a recent district court ruling in which the Chief Judge for the District of Nevada struck down a provision that criminalizes the illegal reentry of previously deported aliens.

The state attorneys general are concerned that the DOJ will follow recent patterns of shirking its duty by not defending the law, nothing multiple examples in which the Biden Administration has demonstrated a habit of “policymaking through the expedient of strategic surrender” in litigation.

This is particularly concerning given the United States’ unprecedented border. In July, the U.S. Border Patrol reported more than 200,000 encounters with migrants along the U.S.-Mexico border, the highest monthly figure in 21 years.

“The Biden Administration has intentionally abandoned its responsibilities to uphold many federal immigration laws and ensure the integrity of our southern border,” said Attorney General Mark Brnovich. “This statute in particular must be vigorously defended to protect the safety of our families and communities. Previously deported criminals should not be given any incentive to illegally return.”

Recently, Secretary of Homeland Security Alejandro Mayorkas acknowledged that the Department of Homeland Security (DHS) has lost control of the border, lamenting that the current situation is “unsustainable,” that it “cannot continue,” that the system is getting close to “breaking,” and that “we’re going to lose.” 
In their letter, the attorneys general explain that defense of federal immigration law is one of the most vital tools for the U.S. government to mitigate the border crisis.
The attorneys general wrote:

“Given that border security had reached the breaking point before Chief Judge Du issued her opinion, just imagine what awaits if you announce your intent not to appeal—an announcement that would, in effect, tell already-deported aliens that they are free to try reentering again. Indeed, acquiescing in the district court’s opinion would be tantamount to announcing legalization of illegal reentry. Moreover, under the district court’s reasoning, the United States may well be unable to enforce any immigration laws, which by their nature disparately impact the many billions of people living outside of our borders.”

Although the DOJ has filed a notice of appeal, that notice does not require the DOJ to ultimately appeal this monumentally incorrect ruling. The attorneys general requested that Attorney General Garland ensure them in writing by Friday, September 17, 2021, that the DOJ will faithfully defend the law.
Joining Attorney General Brnovich and Attorney General Yost are the attorneys general from the states of Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, and West Virginia. 
Copy of AGO letter here.