President Joe Biden’s pledge to suspend deportations and relax other immigration rules has hit an obstacle in the form of federal-state agreements—alongside a lone deal with a North Carolina county sheriff—forged in the waning days of the Trump administration.
The Biden administration is trying to scrap the arrangements, which experts say might not be legally binding. But the agreements have given some states a platform for protesting changes to Trump’s hard-line immigration stance.
The Trump-era deals promised six months’ heads-up on federal immigration policy changes, meaning the states would have had half a year’s notice on Biden’s 100-day deportation chill and the chance to weigh in. Now, at least two of those states, Arizona and Texas, have sued, saying they want U.S. Immigration and Customs Enforcement to continue ousting residents suspected of living in the United States illegally.
Alabama, Indiana, Louisiana, Montana, South Carolina and West Virginia have agreements, as does a Republican sheriff in Rockingham County, North Carolina, according to former Trump administration official Robert Law. He headed the Office of Policy and Strategy at U.S. Citizenship and Immigration Services, which is part of the Department of Homeland Security. Law is now at the Center for Immigration Studies, a Washington, D.C.-based institute that wants tighter restrictions on immigration.
Law objects to recent Biden administration letters saying the pacts are canceled, arguing the Trump administration had the power to make them right up until Inauguration Day.
“In its quest to protect all illegal aliens from immigration enforcement, Biden's DHS has torn up these agreements,” Law said.
The deals contain an extensive list of pledges, including that the United States won’t reduce its number of ICE agents, won’t pause or reduce deportations, won’t relax standards for release from detention and won’t relax standards for apprehension—at least not without consulting with each state’s attorney general.
The deals aren’t likely to be taken seriously by courts, said Sarah Pierce, a policy analyst for the nonpartisan Migration Policy Institute in Washington, D.C.
“It’s pretty blatantly unconstitutional, the idea that the federal government would have to run its immigration policies by states or offices as local as a county sheriff,” Pierce said. However, she said, the arrangements “succeeded in making a strong statement that those states are concerned about big swings in immigration policy.”
The pacts were signed by Kenneth Cuccinelli, then a DHS deputy secretary. Cuccinelli, who is now a fellow at the conservative Heritage Foundation think tank, said the agreements were offered to every state before he signed them in January.
“These agreements are still in force,” Cuccinelli argued, comparing them to the Obama-era Deferred Action for Childhood Arrivals program, which shielded from deportation hundreds of thousands of young people who entered the United States unlawfully as children. That program remained in effect even after Obama took office. “Why anybody wouldn’t want to work with the states is beyond me,” Cuccinelli said. “It’s a matter of cooperation.”
Texas Attorney General Ken Paxton, a Republican, invoked that state’s agreement in a Jan. 21 letter to then-acting Homeland Security Secretary David Pekoske, writing that “Border states like Texas pay a particularly high price” when deportation stops because of its high immigrant population. Left unchallenged, Paxton wrote, the pause could “allow the Biden administration to grant blanket amnesty to the vast majority of illegal aliens in this country.”
Arizona sued this month over the pause in deportations. It followed Texas, which won a temporary injunction in federal court against the pause. When Texas filed its lawsuit, the Biden administration sent the state a letter saying its Jan. 8 agreement with Trump officials was “void, not binding and unenforceable.” The Biden administration sent similar letters to Arizona and South Carolina.
Legal experts see little merit in agreements that attempt to force the federal government to consult with individual states even under a new administration.
“It would entirely upend the relationship of the federal government and the states, and allow all kinds of hampering of political transitions,” said Rick Su, a professor at the University of North Carolina School of Law who specializes in immigration policy.
In the Texas case, U.S. District Judge Drew Tipton this week extended the injunction, allowing deportations to continue until Feb. 23. However, he has not ruled on the legality of the deals, basing the injunction instead on another federal law that requires notice and public comment for new policies.
Arizona considers its agreement to be valid, said Katie Conner, a spokesperson for Arizona Attorney General Mark Brnovich, a Republican.
In the Arizona lawsuit, which hasn’t yet been heard, Brnovich argues that it would be illegal to release immigrants whom immigration courts already have ordered to be deported. The suit argues that failing to follow through with the deportations would strain Arizona’s police, hospitals and social services during the pandemic.
South Carolina received a letter from the Biden administration on Feb. 3 informing state officials that the deal was off, said Robert Kittle, a spokesperson for state Attorney General Alan Wilson, a Republican. The state hasn’t decided whether to sue.
“We’ll be evaluating all our legal options, but we’re in a much different situation from Texas and Arizona since they’re border states,” said Kittle. Indiana has not gotten a letter from the new administration seeking to rescind the agreements. Attorneys general in Alabama, Louisiana, Montana and West Virginia did not respond to requests for comment.
Sheriff Sam Page in Rockingham County, North Carolina, said the DHS sent him the agreement for review and he signed it because he wants “an opportunity for dialogue with this administration” on immigration. Page declined to say whether he’s considering legal action.
Law, the former Trump immigration official, said he’s not sure how the agreements were arranged but that “nobody was turned down who wanted this.” He called the Biden administration’s deportation pause a “radical suspension of our immigration laws.” The DHS did not respond to a request for comment.
The National Immigration Project, a nonprofit that provides legal help to immigrants, has helped dozens of immigration attorneys fight deportations since the injunction in the Texas case, said Sirine Shebaya, its director. Every case has been successful, she said, because the pending removals did not fit the Biden administration’s new deportation priorities.
“Attorneys reach out to us and say, ‘Hey, my client is getting put on a plane,’” Shebaya said. “We’re stopping deportations on a case-by-case basis, but what about the people on the plane that don’t have an attorney or don’t know the process? The risk is very high for them.”