In a bid for national media attention, Arizona Attorney General Mark Brnovich filed a lawsuit against the Department of Homeland Security invoking an unlawful agreement the state made with the Trump administration during its final weeks in power. The “SAFE Agreement” — signed on January 8, 2021 between the Arizona Attorney General’s office and an anti-immigrant administration on its last legs — was an extraordinary and improper effort to tie the hands of incoming DHS leadership. It required the Department to provide Arizona with “180 days’ written notice… and an opportunity to consult and comment” if the agency were to reduce immigration enforcement in any way.

When the Biden administration’s DHS issued a memorandum to pause deportations for 100 days, Arizona AG Brnovich zeroed-in. Arizona’s lawsuit against DHS, later joined in by Montana, claims that the Biden administration’s efforts to make immigration enforcement more just and humane violate the agreement the state signed with the Trump-era DHS.

The agreement, and Arizona’s lawsuit, are attempts to restrict the new administration from temporarily pausing deportations that have upended the lives of immigrants and their families while the administration reevaluates the nation’s immigration priorities. It represents a brazenly political (and unprecedented) attempt to tie the hands of a new administration. And it flouts the rule of law by relying on the non-existent legal authority of a former DHS official who was illegally appointed to his role under the decisions of numerous courts.

We filed an amicus brief on behalf of five immigration justice groups to explain to the court that Ken Cuccinelli’s illegal appointment as Acting Deputy Secretary of Homeland Security invalidates the extraordinary SAFE Agreement that serves the basis of Arizona’s lawsuit. Cuccinelli — one of many illegal appointments at Trump’s DHS — lacked the constitutional or statutory authority needed to sign off on Arizona’s agreement and others like it in various jurisdictions. Seven courts, and the Government Accountability Office, have all held that the officials who appointed Cuccinelli were appointed unlawfully. Not to mention the case we won holding that Cuccinelli was unlawfully appointed as Acting Director of USCIS.

The amicus brief was filed on May 6, 2021 on behalf of the American Immigration Lawyers Association (AILA), the National Immigrant Justice Center (NIJC), the National Immigration Law Center (NILC), the Refugee and Immigrant Center for Education and Legal Services (RAICES), and the Catholic Legal Immigration Network, Inc. (CLINIC).

April 2019

Kevin McAleenan unlawfully replaces DHS Sec. Kirstjen Nielsen

When Secretary Nielsen resigned in April 2019, Kevin McAleenan unlawfully assumed the role of Acting Secretary.

November 2019

Chad Wolf is unlawfully appointed by McAleenan to serve as DHS Acting Secretary.

Wolf, in turn, lacked the authority to name Cuccinelli to his position.

March 2020

We won a landmark lawsuit that ruled Cuccinelli was illegally appointed to his previous post as Acting Director of USCIS.

Our case with CLINIC and Debevoise & Plimpton, LLP on behalf of RAICES and seven asylum seekers was the first to hold that a Trump administration official was unlawfully appointed.

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Seven courts and the Government Accountability Office conclude that the officials who placed Cuccinelli in power themselves lacked any lawful authority to do so.

See: E. Bay Sanctuary Covenant v. Barr, --- F. Supp. 3d ---, 2021 WL 607869 (N.D. Cal. 2021); Pangea Legal Servs. v. DHS, --- F. Supp. 3d ---, 2021 WL 75756 (N.D. Cal. 2021); La Clinica de la Raza v. Trump, 2020 WL 7053313 (N.D. Cal. 2020); Batalla Vidal v. Wolf, --- F. Supp. 3d ---, 2020 WL 6695076 (E.D.N.Y. 2020); Casa de Md., Inc. v. Wolf, 486 F. Supp. 3d 928 (D. Md. 2020); Immigrant Legal Res. Ctr. v. Wolf, 491 F. Supp. 3d 520 (N.D. Cal. 2020); GAO, B-331650, Decision: Matter of Department of Homeland Security (Aug. 14, 2020); Al Otro Lado v. Gaynor, --- F. Supp. 3d ---, 2021 WL 150987 (S.D. Cal. 2021)

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January 8, 2021

Arizona AG Mark Brnovich signs “SAFE Agreement” with Trump DHS.

The extraordinary and unlawful agreement was signed by Ken Cuccinelli and requires DHS to provide Arizona “180 days’ written notice ... and an opportunity to consult and comment” on the agency’s changes to immigration policy.

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February 3, 2021

Arizona files suit against DHS.

Brnovich’s lawsuit claims that the Biden administration’s revised approach to enforcing immigration law violates the SAFE Agreement.

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March 8, 2021

Arizona’s lawsuit is joined by the state of Montana.

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May 7, 2021

We filed our amicus brief on behalf of immigration justice groups, explaining Cuccinelli’s illegal authority to sign SAFE Agreements.

John Lewis

Senior Counsel

Litigating challenges to unlawful actions at the federal and state level.

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