PHOENIX – A last-minute agreement to prevent changes to immigration policies, between the outgoing Trump administration and Arizona state officials, is unlawful, according to a federal lawsuit filed Tuesday by a Latino civil rights organization.
Attorneys with MALDEF (Mexican American Legal Defense and Educational Fund), Munger, Tolles & Olson LLP, and the Ortega Law Firm filed the suit in the United States District Court for the District of Arizona on behalf of Puente Human Rights Movement, Chicanos Por La Causa, and the Florence Immigrant & Refugee Rights Project. The three organizations work with immigrants in Arizona.
“This unlawful agreement is an attempt by Arizona and the Trump administration to embed policies rejected by voters when they rejected Trump’s reelection,” said Thomas A. Saenz, MALDEF president and general counsel. “Fortunately, we can wipe away this anti-democratic attempt to thwart the electoral outcome because the federal official who signed the agreement lacked any authority due to a longstanding violation of federal law.”
In January, the U.S. Department of Homeland Security (DHS) and Arizona Attorney General Mark Brnovich signed an agreement that purports to restrict the Biden administration’s ability to adopt immigration enforcement policy changes without notifying and consulting Arizona. The agreement is known as the Sanctuary for Americans First Enactment (SAFE) Agreement.
“In its last months, the Trump administration and certain state officials tried to tie the hands of the Biden Administration to prevent a more equitable and compassionate approach to immigration policy,” said Martin Estrada, a partner at Munger, Tolles and Olson LLP. “Those efforts were wrong and unlawful, and our lawsuit seeks to prove that.”
MALDEF is challenging the agreement because it was signed by Kenneth T. Cuccinelli, a government official who was unlawfully serving as the acting deputy secretary of DHS.
“Kenneth Cuccinelli had no authority to sign the SAFE agreement,” said MALDEF staff attorney Ernest I. Herrera. “Anti-immigrant state officials like Arizona AG Brnovich should not be given carte blanche to obstruct policy reforms based on Mr. Cuccinelli’s unlawful action.”
Cuccinelli, who was Senior Official Performing the Duties of Deputy Secretary of Homeland Security when he signed the MOU, was not lawfully designated to that position and therefore lacked authority to sign the agreement with Arizona, according to the lawsuit.
“Chicanos Por La Causa is filing this complaint to empower and strengthen the communities in which we serve and in which we live,” said President and CEO of Chicanos Por La Causa, David Adame. “Our vision is empowered lives, and a ruling in our favor will do just that.”
Cuccinelli assumed the acting deputy role in violation of the Federal Vacancies Reform Act (FVRA), which governs vacancies in executive agency positions that require presidential nomination and Senate confirmation, and the Homeland Security Act (HSA), which sets forth specific rules of succession for agency leadership. According to the complaint, in 2019 then-acting Secretary of Homeland Security Chad Wolf, who invalidly assumed the position himself, unlawfully changed the order of succession to promote Cuccinelli to acting DHS deputy secretary. And given that the position had been vacant for more than 210 days, the FVRA required it to remain vacant until it could be filled by a Senate-confirmed nominee. Yet Cuccinelli still assumed the office without Senate approval.
The agreement also intrudes on the federal government’s sole and exclusive authority to set immigration policy, and therefore violates the U.S. Constitution’s Supremacy Clause and violates equal protection, according to the suit.
“This agreement unlawfully attempts to blunt the Biden administration’s power to set its own immigration policy,” said Laura St. John, Florence Project Legal Director, “by giving the state of Arizona undue weight in determining and enforcing what should be federal policy.”
On January 20, President Biden signed an executive order placing a 100-day moratorium on deportations. On February 3, Arizona Attorney General Mark Brnovich sued the Biden administration alleging that the executive order violated the agreement signed with DHS.
“As an organization, we are outraged by Arizona Attorney General Mark Brnovich’s actions in wanting the state of Arizona to continue to separate and deport families,” said Jovana Renteria, Co-Executive Director of Puente Human Rights Movement. “The 100-day moratorium on deportations is an opportunity for the federal government to take corrective action in their hostile practices of policing.”
The suit names the Arizona Attorney General Brnovich and DHS as defendants.
Read the complaint here