Texas has filed a lawsuit seeking to stop President Joe Biden’s pause on many deportations by claiming that the Department of Homeland Security violated the terms of an unusual agreement with the previous administration that guaranteed the state a chance to weigh in on immigration policies.
Texas Attorney General Ken Paxton announced the lawsuit on Friday.
“I told @DHSgov and @JoeBiden last night to rescind its deportation freeze, which is unconstitutional, illegal, and bad for Texas and the nation. They didn’t budge. So #Texas is bringing them to court,” the attorney general’s office said on Twitter.
In December and January, DHS signed agreements with multiple jurisdictions, including the state of Arizona, Indiana, South Carolina, Alabama, and Texas, that appeared to be an effort to hamstring the Biden administration’s goals to pause deportations, prioritize immigration arrests to only those with serious criminal backgrounds, and increase avenues to asylum.
The agreements, which have raised questions as to their legality, represent a potential challenge for the Biden administration as it proceeds with promised reforms and overhaul of the immigration system after four years of restrictive policies instituted by former president Donald Trump.
The memos stated that the DHS was to provide notice of immigration policy changes and allow the jurisdictions six months to review and submit comments before the agency moves forward with any of the proposed changes, according to documents obtained by BuzzFeed News.
On Jan. 20, the Biden administration issued a pause on deportations for many undocumented immigrants who have final orders of removal. The memo states that the 100-day pause applies to all noncitizens with final deportation orders except those who have engaged in a suspected act of terrorism, people not in the US before Nov. 1, 2020, or those who have voluntarily agreed to waive any right to remain in the US.
Paxton is seeking to block the moratorium by claiming that its immediate implementation violates the agreement the state signed with DHS, along with alleged violations of federal immigration and administrative law.
“DHS issued the January 20 Memorandum without following the notice and consultation requirements contained in the Agreement,” Paxton’s lawsuit states. “The January 20 Memorandum is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” and “without observance of procedure required by law.”
Legal experts have questioned the nature of the agreements.
“This is exactly what they are designed to do — cynically gum up Biden’s immigration agenda. But the agreements are unenforceable. Among the other legal flaws, they likely have no statutory authorization and were likely signed by an acting DHS official with no authority to sign them,” said Pratheepan Gulasekaram, a professor at Santa Clara University School of Law, noting that the former agency official who signed the agreements, Ken Cuccinelli, had been determined to be likely unlawfully appointed to his department roles.
Steve Vladeck, a professor at the University of Texas School of Law, noted that the lawsuit was filed in a court in Victoria, Texas, in an effort, he believes, to find a friendly judge who would be hostile to the Biden administration.
“It sure would be something if one administration could enter into a contract with a state that barred its successor from exercising any discretion in enforcing the relevant federal laws,” Vladeck said.
The agreement establishes a “binding and enforceable commitment between DHS and Agency” that the local jurisdiction will cooperate with DHS on border security and immigration enforcement in exchange for “DHS’s commitment to consult Agency and consider its views before taking any action, adopting or modifying a policy or procedure, or making any decision that could” reduce or relax immigration enforcement, decrease the number of ICE agents performing enforcement within the jurisdiction’s area, pause deportations, decrease immigration arrests, or expand immigration benefits, among other policies.
The agreement continues by laying out that DHS will “prioritize the protection of the United States” by enforcing immigration laws in a way that prioritizes detention and results in arrests of “removable aliens.”
DHS is required to provide the local jurisdictions with 180 days of written notice of “the proposed action and an opportunity to consult and comment on the proposed action, before taking any such action” listed above. If either of the parties does not “comply” with the obligations, they will be entitled to “injunctive relief,” according to the agreement. Either party can “request in writing” to terminate the agreement, but must provide 180 days of notice.
The state of Texas previously led the charge in federal court to block the Deferred Action for Childhood Arrivals program, which shields undocumented immigrants who were brought to the country at a young age from deportation. That lawsuit is still pending in federal court.