PHOENIX — A federal judge has slapped down a bid by Attorney General Mark Brnovich to get the federal government to take custody of and deport more people who are here illegally, and do it quicker.
In a 21-page opinion, U.S. District Court Judge Susan Bolton agreed with Brnovich that the state is incurring costs due to a change in guidelines implemented earlier this year by the Biden administration.
That change altered the priorities for the Department of Homeland Security to use when deciding who to detain and deport. The result has been that some people who are here illegally — including those just released from state prisons — have been allowed to remain.
Bolton disagreed with Brnovich that federal law requires that anyone who already has a final order of removal — meaning they have exhausted all appeals — be picked up and deported by Immigration and Customs Enforcement within 90 days.
The judge wrote that is what is required in a 1996 law.
But she cited a U.S. Supreme Court ruling that concluded it was doubtful that Congress believed all reasonably foreseeable removals could be accomplished in that time. Bolton said there is reason to believe the 90-day deadline is “merely a ‘target’ date for removal rather than a statutory mandate.’’
The judge also pointed out that the guidance — which is meant only to be temporary — does not prohibit the arrest, detention or removal of anyone who is not a citizen but merely sets up procedural steps for cases that are not a priority to be handled given the limited resources of ICE.
“The government is not refusing to remove ‘other priority’ noncitizens,’’ Bolton wrote. “It is prioritizing the removal of some noncitizens over others.’’
At the top of that priority list are cases of national security, including those who have engaged in or are suspected of terrorism or espionage.
After that comes border security, meaning people apprehended while trying to cross. Finally there is the category of public safety consisting of those who have been convicted of an “aggravated felony’’ and are determined to pose a threat to public safety.
Bolton said while Brnovich may not agree with this prioritization scheme, his complaints do not rise to a level that shows the government is abdicating its responsibility to remove noncitizens with final orders of removal from the United States.
Brnovich said the ruling, while going against the state, is at least a partial victory.
“The judge recognized that we do have standing because of the harm of the Biden administration’s policies,’’ he told Capitol Media Services. Brnovich said the only reason the case was dismissed was a “legal technicality.’’
The state has filed an appeal.
Central to the issue is the argument by Brnovich that the change in priorities put in place in January by the Biden administration are causing financial harm to the state.
He said the state has to provide emergency medical care to noncitizens who would otherwise have been deported. Ditto, he said, in providing education.
And Brnovich had specific arguments — and numbers — to go with his claim
Bolton said he presented evidence that Arizona annually spends $4,164 for each individual placed on community supervision after they are released from state prison. And she said that there are at least four individuals in that program who, but for the change in guidance, would have been picked up by ICE and removed.
The judge also noted there is reason to believe that could grow, citing figures provided by the state showing that 2,434 inmates are not only not citizens of the United States but already have orders for removal upon their release — orders that are not being enforced.
All that, she said, gives Arizona standing to sue.
“Arizona spends a significant amount of money on conducting community supervision of individuals release from state prison,’’ Bolton said, putting the figure at nearly $23 million in 2019. “And unremoved noncitizens are being asked to the ranks of those under community supervision, which almost certainly increases the overall cost to Arizona.’’
Brnovich, who is a Republican candidate for U.S. Senate, has filed a series of similar lawsuits since the Biden administration has taken office.
In April, he filed suit in a bid to use federal environmental laws to force the administration to resume construction of the border wall.
Brnovich contends that the National Environmental Policy Act requires the federal government to conduct a study to determine the effects of any change in policy. But he said Biden, in halting wall construction and scrapping the “remain in Mexico’’ policy of the Trump administration in handling asylum requests, ignored that law.
He said these changes not only have an immediate impact such as more trash left by migrants in the desert, but will mean more people in this state and this country. Brnovich said there is clear precedent that any change in policy that affects population must first be studied.
That lawsuit is still pending.
In a separate case, Brnovich wants a federal judge to rule that Arizona can take billions from the federal government in virus aid without having to comply with a provision barring the state from using the money for tax breaks.
He argues the provision in the American Rescue Plan Act of 2021 is, at the very least, ambiguous about how it affects the ability of the governor and state lawmakers to set their own fiscal policy.
Treasury Secretary Janet Yellen, in a letter to Brnovich, had spelled out the conditions under which Arizona, which has received billions in federal dollars, could cut its taxes.
“Nothing in the Act prevents states from enacting a broad variety of tax cuts,’’ she wrote. Yellen said all the law does is preclude states from using their federal dollars to finance them.
Brnovich remains unsatisfied, saying it was illegal for Congress to tell states they can’t use federal aid dollars to provide tax relief to businesses and individuals. He called the provision “an unconstitutional attempt by Congress to usurp the sovereign taxing powers of the states.’’