By Howard Fischer
Capitol Media Services
PHOENIX – A federal judge has rejected an offer from Attorney General Mark Brnovich to force the federal government to take over and deport more people who are here illegally and to do so faster.
In a 21-page opinion, U.S. District Court Judge Susan Bolton agreed with Brnovich that the state was incurring costs due to a change in guidelines implemented earlier this year by the Biden administration.
This change has altered the priorities the Department of Homeland Security must use in deciding who to detain and deport. And the result has been that some people who are here illegally – including those who have just been released from state prisons – have been allowed to stay.
But Bolton disagreed with Brnovich that federal law requires anyone who already has a final deportation order – meaning they have exhausted all avenues – to be picked up and deported by Immigration and Customs Enforcement within 90 days.
It is true, the judge wrote, that this is what is required in the 1996 law.
But she cited a U.S. Supreme Court ruling that found it was doubtful Congress believed any reasonably foreseeable dismissals could be made during this period. And Bolton said there is reason to believe the 90-day deadline is “simply a ‘target’ date for removal rather than a statutory warrant.”
The judge also pointed out that the guidelines – which are meant to be only temporary – do not prohibit the arrest, detention or removal of anyone who is not a citizen, but simply sets procedural steps for cases. which are not a priority to be addressed given the limited resources of the ECI.
“The government is not refusing to take non-citizens away from ‘other priorities’,” Bolton wrote.
At the top of this priority list are national security cases, including those which have engaged in or are suspected of terrorism or espionage.
Next comes border security, that is, people apprehended while trying to cross.
Finally, there is the public safety category made up of those who have been convicted of an “aggravated crime” and are determined to pose a threat to public safety.
Bolton said that while Brnovich may not agree with this prioritization plan, his complaints do not reach a level that shows the government is abdicating its responsibility to deport non-nationals with final deportation orders. the United States.
Brnovich said the decision, while going against the state, is at least a partial victory.
“The judge acknowledged that we had standing because of the prejudice caused by the policies of the Biden administration,” he told Capitol Media Services. Brnovich said the only reason the case was dismissed was “legal technicality.”
The state has already filed an appeal.
At the heart of the matter is Brnovich’s argument that the change in priorities put in place in January by the Biden administration is causing financial harm to the state.
He said the state must provide emergency medical care to non-nationals who would otherwise have been deported. Ditto, he said, in the education offer.
And Brnovich had specific arguments – and numbers – to go with his request.
Bolton said he presented evidence that Arizona spends $ 4,164 annually for every person placed under community supervision after release from state prison. And she said there are at least four people in this program who, had it not been for the shift in focus, would have been picked up by ICE and removed.
The judge also noted that there was reason to believe it could increase, citing figures provided by the state showing that 2,434 detainees are not only citizens of the United States, but that they already have discharge orders – orders that are not enforced.
All of this, she said, gives Arizona the right to sue.
“Arizona spends a significant amount of money on community surveillance of those released from state prison,” said Bolton, putting the figure at nearly $ 23 million in 2019. “And non-nationals do not. withdrawn are invited to join the ranks of those under community surveillance, which almost certainly increases the overall cost to Arizona. ”
But without a ruling that the 90-day requirement is enforceable, that still leaves Arizona with no legal recourse.
Brnovich, who is a Republican candidate for the US Senate, has filed a series of similar lawsuits since the Biden administration took office.
In April, he filed a lawsuit with the aim of using federal environmental laws to force the administration to resume construction of the border wall.
Brnovich argues that the National Environmental Policy Act requires the federal government to conduct a study to determine the effects of any policy change. But he said Biden, by stopping construction of the wall and abandoning the Trump administration’s “stay in Mexico” policy in processing asylum claims, ignored the law.
He said that these changes not only have an immediate impact, like more garbage left by migrants in the desert, but that they will also make more people in this state and this country. And Brnovich said there is a clear precedent that any policy change that affects the population must first be studied.
This trial is still pending.
In another case, Brnovich wants a federal judge to rule Arizona can take billions of dollars from the federal government in virus aid without having to comply with a provision prohibiting the state from using the money. for tax breaks.
He argues that the provision of the American Rescue Plan Act of 2021 is, at the very least, ambiguous in how it affects the ability of the governor and state legislators to set their own fiscal policy.
Secretary of the Treasury Janet Yellen, in a letter to Brnovich, had clarified the conditions under which Arizona, which has received billions of federal dollars, could reduce its taxes in won.
“Nothing in the law prevents states from adopting a wide variety of tax cuts,” she wrote.
Yellen said all the law does is stop states from using their federal dollars to fund them.
But Brnovich remains dissatisfied, saying it was illegal for Congress to tell states they can’t use federal aid dollars to give tax breaks to businesses and individuals. He called the provision an “unconstitutional attempt by Congress to usurp the sovereign taxing powers of states.”