3 States Sue Biden Administration Over Memo That Curtails Arrests of Illegal Immigrants

November 20, 2021 Updated: November 22, 2021

The attorneys general of three states have sued President Joe Biden’s administration over a memorandum that ordered immigration agents not to arrest most illegal immigrants inside the United States.

Arizona Attorney General Mark Brnovich, Montana Attorney General Austin Knudsen, and Ohio Attorney General Dave Yost, all Republicans, say the directive from Homeland Security Secretary Alejandro Mayorkas is “a brazen display of contempt for Congress’s statutory commands.”

Mayorkas, a Biden nominee, wrote on Sept. 30 that being in the country illegally wasn’t enough cause for agents to carry out an arrest.

Estimates of illegal immigrants inside the United States range from 11 million to more than 14 million.

Mayorkas said agents don’t have enough resources to track down so many illegal immigrants and urged Immigration and Customs Enforcement (ICE) agents to use discretion when making arrests. Only illegal immigrants who pose a threat to national security, public safety, or border security should be targeted for removal, according to the guidelines.

In the new suit, the attorneys general say the memo amounts to halting the enforcement of federal immigration law, with few exceptions.

“Despite a clear mandate of federal statutory law, defendants believe that there are literally no constraints whatsoever on their authority, and they may release individuals, including those charged with or convicted of crimes, even when immigration courts have already ordered their removal from the United States,” they wrote.

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Arizona Attorney General Mark Brnovich speaks at a news conference in Phoenix, on Jan. 7, 2020. (Bob Christie/AP Photo)

The suit lays out concerns that illegal aliens charged with or convicted of crimes will be released as a result of the memo, further stressing that facilities such as hospitals are already stressed due to the COVID-19 pandemic. Montana law enforcement officials fear the guidance will lead to an increase in drug trafficking, while Ohio officials believe they’ll have to “confront rising crime as aliens are released from criminal detention.”

The suit asks the court to declare the guidelines violative of federal law and permanently enjoin the federal government from applying them. It was filed in federal court in Cincinnati.

“The Biden Administration continues to pursue its reckless open border policies, with a shocking disregard for the law and the safety of American families,” Brnovich said in a statement. “Its latest administrative guidance would essentially abolish ICE, even as escalating crime and atrocities are moving through our border and into communities across the country. Together with Ohio and Montana, Arizona has filed suit to challenge and reverse this deeply misguided policy that would further devastate our country.”

Mayorkas defended the memo before a Senate panel last week, arguing that it came from “tremendous experience not only as a member of the Department of Homeland Security, but as a federal prosecutor.”

The approximately 1.2 million illegal immigrants who have been ordered deported can’t all be removed, Mayorkas claimed, not to mention the rest of those illegally in the country.

Pressed by Sen. Chuck Grassley (R-Iowa) on whether he thought any of them should be removed, Mayorkas said, “I do believe that individuals who pose a public safety threat, pose a national security threat, who pose a border security threat should be removed, and we should be smart and effective in our use of resources, and we should focus on the well-being of our communities and prioritize individuals for removal.”

Zachary Stieber
Zachary Stieber covers U.S. and world news. He is based in Maryland.