Arizona, other states file lawsuit to halt Biden DHS final guidance on deportations

Three states are suing the federal government, claiming that a Biden administration immigration policy violates federal law

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FIRST ON FOX: Attorneys General from Arizona, Ohio, and Montana are suing the Department of Homeland Security over their immigration policy that they argue violates federal law by improperly halting most deportations.

The "Guidelines for the Enforcement of Civil Immigration Law," the states say, violates a legal requirement for U.S. Immigration and Customs Enforcement to deport anyone with a final order of removal against them within 90 days.

Secretary of Homeland Security Alejandro Mayorkas testifies during a Senate Judiciary Committee hearing, Tuesday, Nov. 16, 2021, on Capitol Hill in Washington. (AP Photo/Jacquelyn Martin)

Secretary of Homeland Security Alejandro Mayorkas testifies during a Senate Judiciary Committee hearing, Tuesday, Nov. 16, 2021, on Capitol Hill in Washington. (AP Photo/Jacquelyn Martin) (AP Photo/Jacquelyn Martin)

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"This is a suit to enforce bedrock requirements of immigration and administrative law," the lawsuit, filed Thursday and obtained by Fox News Digital, reads. "On September 30, 2021, in a brazen display of contempt for Congress’s statutory commands, Secretary Alejandro Mayorkas—Secretary of the Department of Homeland Security ('DHS')—announced a policy that abandons DHS’s duties to enforce or implement entire swaths of immigration law."

The lawsuit argues that the Permanent Guidance is a direct violation of federal law (8 U.S.C. § 1231), which requires U.S. Immigration and Customs Enforcement (ICE) to remove an alien who has received a final deportation order within 90 days and says there are currently over 1 million individuals with final removal orders currently residing in the United States. 

Oct. 27 2021: Migrants make their way to the U.S. border.

Oct. 27 2021: Migrants make their way to the U.S. border.

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The lawsuit outlines how each state attached to the lawsuit is negatively affected by the DHS's new position on deporting illegal immigrants including a potential rise in crime and potential spreading of the coronavirus which the states argue could overload their systems.

"The Biden Administration continues to pursue its reckless open border policies, with a shocking disregard for the law or the safety of American families," Arizona Attorney General Mark Brnovich said in a statement. "Its latest administrative guidance would just about abolish ICE, even as escalating crime and atrocities are moving through our border and into communities across the country."

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The guidelines, issued September 30 by DHS Secretary Alejandro Mayorkas, say that prosecutorial discretion is their "foundational principle." With an estimated 11 million illegal immigrants in the U.S., Mayorkas said this discretion is necessary for prioritizing who warrants devoting resources for deportation. The guidelines say that officials should focus on "those who pose a threat to national security, public safety, and border security and thus threaten America' s well-being."

"The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them," the document says.

Border Patrol agents have been fired upon in a series of targeted attacks this month, the U.S. Customs and Border Protection agency said.  

Border Patrol agents have been fired upon in a series of targeted attacks this month, the U.S. Customs and Border Protection agency said.   (Getty Images)

The lawsuit asks for the federal government to declare that the Permanent Guidance was issued in violation of the law, postpone the effective date, and prevent it from being applied.

The Department of Homeland Security did not immediately respond to a request for comment from Fox News.