PHOENIX (Daily Montanan) — A federal judge in Arizona on Thursday said she’ll deny a request from Attorney General Mark Brnovich to issue a preliminary injunction prohibiting the federal government from enforcing a temporary pause on deportations.
Montana had joined Arizona in the lawsuit, arguing that methamphetamine made in Mexico was a threat to Montana.
That pause, issued on Jan. 20, 2021, is known as the 100-day deportation moratorium and has been held from implementation since a Texas court issued a temporary restraining order on Jan. 26.
On Feb. 2, Brnovich filed a lawsuit also seeking a preliminary injunction on the deportation pause, which excluded migrants who entered the country after Nov. 1, 2020; people released from local or state custody for “aggravated felony” convictions; and “individuals who have engaged in or are suspected of terrorism or espionage.”
In a hearing Thursday morning, Judge Susan Bolton of the Phoenix district court said Arizona’s request for the preliminary injunction on the deportation pause is moot.
Anthony Napolitano, representing Arizona, had a hard time explaining to Bolton why a preliminary injunction over the 100-day deportation pause, which is not in effect, was necessary.
He then told Bolton he believes the Department of Homeland Security is violating the Texas court order that bars federal agents from enacting the deportation pause.
“We need this so we can pursue potential claims for contempt against DHS for not following this policy,” Napolitano said.
He briefly referenced a case in Florida, where ICE has denied seven custody transfer requests, known as detainers, from the Florida Department of Corrections. Last week, Florida Governor Ron DeSantis claimed that ICE is not taking custody of people convicted of criminal felonies after they were released from state prisons.
“We believe these same issues are arriving in Arizona,” Napolitano said.
Bolton said that is not an argument that Arizona has presented in any of its court documents in the lawsuit, but she allowed the state to continue exploring that claim.
Bolton said she’d consider whether a preliminary injunction is warranted for a DHS guidance from February on immigration enforcement.
That guidance, titled Civil Immigration Enforcement and Removal Priorities and signed on Feb. 18 by Tae Johnson — the acting director of US Immigrations and Customs Enforcement — outlines how ICE will prioritize deportations. The priorities include those who have “engaged in or are suspected of terrorism or espionage” or other national security threats; those arrested after crossing the border between ports of entry after Nov. 1, 2020; and people who are a “presumed to be a threat to public safety,” including those convicted of aggravated felonies.
The guidance, which is temporary, still gives ICE agents discretion to pursue deportations for people who don’t fall in those categories.
In an amended complaint to the original lawsuit, Arizona has said the 100-day deportation pause and the February guidance on enforcement have a combined effect of violating a law on how government agencies issue regulations and immigration law. Brnovich is also seeking to prohibit the federal government from implementing a DHS guidance on immigration enforcement issued on Feb. 18.
By asking the court to prohibit the federal government from implementing that guidance, Arizona and Montana are essentially seeking for immigration enforcement to revert back to the Trump administration’s policy of considering anyone who violated civil or criminal immigration statutes a priority for deportation.
At the hearing Thursday, the judge said Arizona is mistaken to treat the 100-day deportation pause and the February guidance as one in the same.
Still, Bolton allowed the further briefing and discovery, with depositions, to take place to explore whether a preliminary injunction is necessary.
U.S. Department of Justice attorney Michael Knapp said Arizona and Montana had not shown they will suffer “irreparable harm” if a prohibition on enacting the guidance wasn’t ordered by the court. Still, Bolton allowed for the case to move forward.
“I’m not rejecting (Napolitano’s) arguments,” she said. “They have not been fully developed yet.”