Case 2:21-cv-00186-DLR Document 1 Filed 02/03/21 Page 1 of 11

1 MARK BRNOVICH
ATTORNEY GENERAL
2 (Firm State Bar No. 14000)
3 Joseph A. Kanefield (No. 15838)
Brunn W. Roysden III (No. 28698)
4 Drew C. Ensign (No. 25463)
5 Anthony R. Napolitano (No. 34586)
Robert Makar (No. 33579)
6 2005 N. Central Ave
7 Phoenix, AZ 85004-1592
Phone: (602) 542-8958
8 [email protected]
[email protected]
9
[email protected]
10 [email protected]
[email protected]
11
Attorneys for Plaintiffs
12 UNITED STATES DISTRICT COURT
13 DISTRICT OF ARIZONA
14
STATE OF ARIZONA and MARK No.___________
15 BRNOVICH, in his official capacity as
16 Attorney General of Arizona, COMPLAINT FOR
Plaintiffs, DECLARATORY AND
17 INJUNCTIVE RELIEF
v.
18
UNITED STATES DEPARTMENT OF
19
HOMELAND SECURITY; UNITED
20 STATES OF AMERICA; ALEJANDRO
MAYORKAS, in his official capacity as
21
Secretary of Homeland Security; TROY
22 MILLER, in his official capacity as
Acting Commissioner of United States
23 Customs and Border Protection; TAE
24 JOHNSON, in his official capacity as
Acting Director of United States
25 Immigration and Customs Enforcement;
26 and TRACY RENAUD, in her official
capacity as Acting Director of U.S.
27 Citizenship and Immigration Services,
28 Defendants.
 Case 2:21-cv-00186-DLR Document 1 Filed 02/03/21 Page 2 of 11

1 INTRODUCTION
2 1. This is a suit to enforce bedrock requirements of immigration and
3 administrative law, as well as binding commitments made by the U.S. Department of
4 Homeland Security (“DHS”) to Arizona’s law enforcement community, through its
5 Attorney General.
6 2. On January 20, 2021, DHS’s Acting Secretary announced a policy that
7 flouts entire swaths of immigration law for 100 days. Exhibit A. Specifically,
8 Defendants intend to halt nearly all deportations during that time, including all or nearly
9 all deportations of unauthorized aliens not lawfully present in Arizona. As long as those
10 unauthorized aliens have not committed crimes related to terrorism and espionage, they
11 are not subject to deportation under this policy.1 And because DHS detention capacity is
12 limited, on information and belief, a necessary consequence of DHS’s policy is that
13 individuals will be released into Arizona communities. On information and belief, DHS
14 has already admitted that some aliens were released in the very first days of the 100-day
15 moratorium.
16 3. Arizona, as a border state, will be directly impacted by Defendants’
17 decision to flout their legal obligations. Arizona’s law enforcement community is
18 particularly concerned that aliens who have been charged or convicted of crimes will be
19 released as a result of DHS’s 100-day moratorium. Moreover, Arizona’s law
20 enforcement community is particularly concerned that releasing individuals during the
21
22
23 1
While the DHS has created a limited exception for aliens for whom “removal is
required by law,” that requires an “individualized determination” by the Acting Director
24 of ICE following consultation with the General Counsel, which is unlikely to encompass
more than a very small group of people. Also, while the memorandum also provides an
25 exception (at 4 n.2) for “voluntary waiver,” which it states “encompasses noncitizens
who stipulate to removal as part of a criminal disposition,” that would not apply to aliens
26 who refuse to stipulate to removal. The fact that DHS has not included serious violent
crimes within the express exceptions to its policies indicates that DHS has not excluded
unauthorized aliens that have committed such crimes from its 100-day moratorium.

2
 Case 2:21-cv-00186-DLR Document 1 Filed 02/03/21 Page 3 of 11

1 COVID-19 pandemic will further stress hospitals and social services at the local and
2 county level.
3 4. Federal law on this issue is clear: “[W]hen an alien is ordered removed,
4 the Attorney General shall remove the alien from the United States within a period of 90
5 days.” 8 U.S.C. § 1231(a) (emphasis added). But, in Defendants’ view, “shall” does not
6 really mean “shall” or “must,” but instead merely “may.” In other words, despite a clear
7 mandate of federal statutory law, Defendants believe that there are literally no
8 constraints whatsoever on their authority, and they may release individuals, including
9 those charged with or convicted of crimes, even when immigration courts have already
10 ordered their removal from the United States.
11 5. A federal court in Texas has already considered similar claims brought by
12 the State of Texas. See Texas v. United States, Case No. 6:21-cv-00003 (S.D. Tex., filed
13 January 22, 2021). That court concluded that Defendants likely violated applicable legal
14 requirements and entered a 14-day nationwide temporary restraining order on January
15 26, 2021. Dkt. No. 21, __ F. Supp. 3d. ___, 2021 WL 247877 (S.D. Tex. Jan. 26, 2021),
16 attached as Exhibit B. This suit raises many of the same claims asserted by Texas,
17 including those that the Southern District of Texas concluded are likely meritorious. Id.
18 at *3-*5.
19 6. This challenged policy is called the “Immediate 100-Day Pause on
20 Removals” by DHS, which was promulgated by the “Review of and Interim Revision to
21 Civil Immigration Enforcement and Removal Policies and Priorities” memorandum
22 issued January 20, 2021 by Acting Secretary Pekoske (the “Memorandum”), attached as
23 Exhibit A.
24 7. Although the moratorium is purportedly for 100 days, no apparent limiting
25 factor is explained: if this action is permitted to stand, DHS could re-assert this
26 suspension power for a longer period or even indefinitely, thus allowing the current

3
 Case 2:21-cv-00186-DLR Document 1 Filed 02/03/21 Page 4 of 11

1 Administration to unilaterally amend the immigration laws as applied to the vast

2 majority of the removable or inadmissible aliens in this country without the required
3 congressional act. The Constitution and controlling statutes prevent such a seismic
4 change to this country’s immigration laws by mere memorandum.
5 PARTIES
6 8. Plaintiff State of Arizona is a sovereign state of the United States of
7 America represented by Arizona Attorney General Mark Brnovich. The Attorney
8 General is the chief legal officer of the State of Arizona, and has the authority to
9 represent the State in federal court.
10 9. Mark Brnovich is the Attorney General of Arizona. He directs and
11 controls the Arizona Attorney General’s Office and Arizona Department of Law, which
12 are parties to the “Agreement Between the Department of Homeland Security and the
13 Arizona Attorney General’s Office and the Arizona Department of Law” effective
14 January 8, 2021 (the “Agreement”), attached as Exhibit C.
15 10. Defendant United States Department of Homeland Security is a federal
16 agency.
17 11. Defendant the United States of America is sued under 5 U.S.C. §§ 702–
18 703 and 28 U.S.C. § 1346.
19 12. Defendant Alejandro Mayorkas is the Secretary of Homeland Security and
20 therefore the “head” of DHS with “direction, authority, and control over it.” 6 U.S.C.
21 § 112(a)(2). Defendant Mayorkas is sued in his official capacity.
22 13. Defendant Troy Miller serves as Senior Official Performing the Duties of
23 the Commissioner of U.S. Customs and Border Protection. Defendant Miller is sued in
24 his official capacity.
25
26

4
 Case 2:21-cv-00186-DLR Document 1 Filed 02/03/21 Page 5 of 11

1 14. Defendant Tae Johnson serves as Deputy Director and Senior Official
2 Performing the Duties of Director of U.S. Immigration and Customs Enforcement.
3 Defendant Johnson is sued in his official capacity.
4 15. Defendant Tracy Renaud serves as the Senior Official Performing the
5 Duties of the Director for U.S. Citizenship and Immigration Services. Defendant
6 Renaud is sued in her official capacity.
7 JURISDICTION AND VENUE
8 16. This Court has jurisdiction under 28 U.S.C. §§ 1331, 1346, and 1361, as
9 well as 5 U.S.C. §§ 702-703.
10 17. The Court is authorized to award the requested declaratory and injunctive
11 relief under 5 U.S.C. § 706, 28 U.S.C. § 1361, and 28 U.S.C. §§ 2201–2202.
12 18. Venue is proper within this federal district pursuant to 28 U.S.C. § 1391(e)
13 because (1) Plaintiffs reside in Arizona and no real property is involved and (2) a
14 “substantial part of the events and omissions giving rise to the claim occurred” in this
15 District—i.e., the non-deportation of aliens and consequent release into Arizona
16 communities.
17 FACTUAL AND LEGAL BACKGROUND
18 The Impact of Immigration on Arizona and DHS’s Agreement
19 With Arizona Law Enforcement Agencies
20 19. As a border state, Arizona is acutely affected by modifications in federal
21 policy regarding immigration. Arizona is required to expend its scarce resources when
22 DHS fails to carry out its statutory duty to deport aliens as provided by law. This
23 includes resources expended by Arizona’s law enforcement community.
24 20. In light of this state of affairs, the Arizona Attorney General’s Office and
25 Arizona Department of Law, agencies of the State of Arizona, through Attorney General
26 Mark Brnovich, entered into the Agreement with DHS. Ex. C.

5
 Case 2:21-cv-00186-DLR Document 1 Filed 02/03/21 Page 6 of 11

1 21. DHS recognized in the Agreement that Plaintiffs are “directly and
2 concretely affected by changes to DHS rules and policies that have the effect of easing,
3 relaxing, or limiting immigration enforcement. Such changes can negatively impact
4 [Plaintiff]’s law enforcement needs and budgets ... [and] other important health, safety,
5 and pecuniary interests of the State of Arizona.” Ex. C at 1.
6 22. DHS specifically recognized that “a decrease or pause on ... removals of
7 removable or inadmissible aliens” “result[s] in direct and concrete injuries to
8 [Plaintiff].” Ex. C at 2.
9 23. Plaintiff committed to “provide information and assistance to help DHS
10 perform its border security, legal immigration, immigration enforcement, national
11 security, and other law enforcement missions in exchange for DHS’s commitment to
12 consult [Plaintiff] and consider its views before taking any action ... that could: ... pause
13 or decrease the number of returns or removals of removal or inadmissible aliens from
14 the country.” Ex. C at 2.
15 24. Specifically, DHS is to “[p]rovide [Plaintiff] with 180 days’ written notice
16 ... of the proposed action and an opportunity to consult and comment on the proposed
17 action, before taking any such action.” Ex. C at 4.
18 25. In the event of doubt, the Agreement commits DHS to “err on the side of
19 consulting with” Plaintiff. Ex. C at 4.
20 26. The Agreement specifically entitles its parties to injunctive relief “if the
21 parties fail to comply with any of the obligations ... imposed” by the Agreement. Ex. C
22 at 5.
23 27. On January 20, 2021, Acting Secretary Pekoske issued the Memorandum,
24 purporting to institute an “Immediate 100-Day Pause on Removals.” Ex. A at 3.
25
26

6
 Case 2:21-cv-00186-DLR Document 1 Filed 02/03/21 Page 7 of 11

1 28. The Memorandum establishes a “Comprehensive Review of Enforcement

2 Policies and Priorities” to be conducted within 100 days from the date of the
3 Memorandum. Ex. A at 2.
4 29. During, and “pending the completion of the review set forth,” Acting
5 Secretary Pekoske “direct[s] an immediate pause on removals of any noncitizen with a
6 final order of removal ... for 100 days to go into effect as soon as practical and no later
7 than January 22, 2021.” Ex. A at 3.
8 30. “The pause on removals applies to any noncitizen present in the United
9 States when this directive takes effect with a final order of removal except one who: ...
10 has engaged in or is suspected of terrorism or espionage, or otherwise poses a danger to
11 the national security of the United States; or” was not “physically present” or voluntarily
12 waived “any rights to remain,” or “[f]or whom the Acting Director of ICE ... makes an
13 individualized determination that removal is required by law.” Ex. A at 3-4.
14 DHS’s Refusal to Even Consult with Arizona Law Enforcement Notwithstanding
15 its Agreement
16 31. Defendant DHS did not consult with Plaintiffs prior to the Memorandum,
17 nor did it provide 180 days written notice of the policies embodied in the Memorandum.
18 32. Plaintiff Mark Brnovich wrote Acting Secretary Pekoske on January 26,
19 2021, requesting that DHS comply with the Agreement before instituting the policy
20 change described in the Memorandum. Exhibit D.
21 33. After the Arizona Attorney General’s Office received no response, the
22 Chief Deputy Attorney General sent a follow-up email on February 1, 2021, on behalf of
23 Attorney General Brnovich, reiterating the request to at least participate in the
24 consultative process agreed to by the parties before DHS change immigration
25 enforcement in Arizona. Exhibit E.
26

7
 Case 2:21-cv-00186-DLR Document 1 Filed 02/03/21 Page 8 of 11

1 34. On February 2, 2021, the Attorney General’s Office received a response

2 signed by Acting Secretary Pekoske completely refusing to engage in any consultative
3 process, provide any further reasoning as to why DHS adopted the 100-day pause, and
4 instead instructing the Arizona Attorney General to “direct any further correspondence
5 concerning the [Agreement] to the Department of Justice.” Exhibit F.
6 CLAIMS FOR RELIEF
7 COUNT I
8 Failure To Provide Notice And Consult Per The Agreement
9 35. The allegations in the preceding paragraphs are reincorporated herein.
10 36. The Memorandum was promulgated without providing notice to or
11 consulting with Plaintiffs, as required by the Agreement. Ex. C at 3-4.
12 37. Thus, the Memorandum is “arbitrary, capricious, an abuse of discretion, or
13 otherwise not in accordance with law” under the Administrative Procedures Act
14 (“APA”). 5 U.S.C. § 706(2)(A).
15 38. Thus, the Memorandum was issued “without observance of procedure
16 required by law.” 5 U.S.C. § 706(2)(D).
17 39. Due to the Memorandum, Plaintiffs “will be irreparably damaged and will
18 not have an adequate remedy at law” and are thus also “entitled to injunctive relief.” Ex.
19 C at 5.
20 COUNT II
21 Violation Of 8 U.S.C. § 1231
22 40. The allegations in the preceding paragraphs are reincorporated herein.
23 41. The Memorandum pauses the operation of the vast majority of extant
24 removal orders for 100 days.
25
26

8
 Case 2:21-cv-00186-DLR Document 1 Filed 02/03/21 Page 9 of 11

1 42. Federal statute requires “when an alien is ordered removed, the Attorney
2 General shall remove the alien from the United States within a period of 90 days.”
3 8 U.S.C. § 1231(a)(1)(A).
4 43. Each removal order affected by, and not individually exempted from, the
5 “pause” is incapable of being fulfilled within the required statutory period.
6 44. 8 U.S.C. § 1231 does not empower Defendants to alter the 90-day
7 deadline, and compliance with the deadline may only be excused based on malfeasance
8 by the alien. See 8 U.S.C. § 1231(a)(1)(C).
9 45. The Memorandum therefore violates the APA, as it is both “arbitrary,
10 capricious, an abuse of discretion, or otherwise not in accordance with law” and “in
11 excess of statutory jurisdiction, authority, or limitations.” 5 U.S.C. § 706(2)(A), (C).
12 COUNT III
13 Failure To Follow Notice And Comment
14 46. The allegations in the preceding paragraphs are reincorporated herein.
15 47. The Memorandum is a rule obligated to follow notice-and-comment
16 rulemaking under the APA. 5 U.S.C. § 553.
17 48. The Memorandum is not an interpretive rule, a general statement of policy,
18 nor is it a rule of agency organization, procedure, or practice otherwise exempt from
19 notice-and-comment rulemaking.
20 49. Thus, the Memorandum must be “held unlawful and set aside” as it was
21 promulgated “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D).
22 COUNT IV
23 Arbitrary and Capricious Agency Action
24 50. The allegations in the preceding paragraphs are reincorporated herein.
25 51. APA prohibits agency actions that are “arbitrary, capricious, an abuse of
26 discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

9
 Case 2:21-cv-00186-DLR Document 1 Filed 02/03/21 Page 10 of 11

1 52. The Memorandum represents a sharp departure from DHS’s previous

2 policy. Because Defendants have not provided a reasoned justification for their sudden
3 change in policy, the issuance of the Memorandum is arbitrary and capricious.
4 53. There is no indication that Defendants considered the costs of adopting the
5 Memorandum, including the threats to public safety. This failure renders the resulting
6 agency action arbitrary and capricious.
7 54. There is also no indication that Defendants considered alternative
8 approaches that would allow at least some additional removals to continue beyond the
9 extremely limited exceptions in the Memorandum. This would include aliens charged or
10 convicted of crimes. The Supreme Court recently held that a DHS immigration action
11 was arbitrary and capricious where it was issued “‘without any consideration
12 whatsoever’ of a [more limited] policy.” Dep’t of Homeland Sec. v. Regents of the Univ.
13 of Cal., 140 S. Ct. 1891, 1912 (2020) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.
14 State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 51 (1983)). The same result should obtain
15 here.
16 PRAYER FOR RELIEF
17 Plaintiffs respectfully request that this Court enter judgment:
18 A. Declaring that the Memorandum was issued in violation of the Agreement;
19 B. Declaring that the Memorandum was issued in violation of 8 U.S.C.
20 § 1231;
21 C. Declaring that the Memorandum was issued without observance of
22 procedure required by law;
23 D. Postponing the effective date of the Memorandum pursuant to 5 § U.S.C.
24 705.
25 E. Vacating the Memorandum and enjoining Defendants from applying it;
26

10
 Case 2:21-cv-00186-DLR Document 1 Filed 02/03/21 Page 11 of 11

1 F. Awarding Plaintiffs their reasonable fees, costs, and expenses, including

2 attorneys’ fees, pursuant to 28 U.S.C. § 2412; and
3 G. Granting any and all other such relief as the Court finds appropriate.
4
5 RESPECTFULLY SUBMITTED this _3rd_ day of February, 2021
6
7 MARK BRNOVICH
ATTORNEY GENERAL
8
By /s/ Brunn W. Roysden III
9
Joseph A. Kanefield (No. 15838)
10 Brunn W. Roysden III (No. 28698)
Drew C. Ensign (No. 25463)
11 Anthony R. Napolitano (No. 34586)
12 Robert J. Makar (No. 33579)
Assistant Attorneys General
13
Attorneys for Plaintiffs
14
15
16
17
18
19
20
21
22
23
24
25
26

11
01210304 56678911


Case 2:21-cv-00186-DLR  8681-1
Document 1Filed
102/03/21
68Page
7 1 of 2
 !"#ÿ%!&!"%ÿ# %!' (!ÿ()'!
# %!' (!ÿ)*ÿ&' +)&
(,-,.ÿ(/-01ÿ%2003
4567ÿ9:;<=9;>?ÿ@ABCCÿD<EF<G=7ÿH>E>G9IIJÿ;<ÿ;5>ÿ=9E:9Iÿ@ABCCÿ9KKG<L>?ÿMJÿ;5>ÿ@:?6D69IÿN<EF>G>ED>ÿ<Fÿ;5>ÿOE6;>?ÿA;9;>7ÿ6EÿA>K;>=M>G
PQRCSÿ45>ÿ?9;9ÿ67ÿG>T:6G>?ÿF<Gÿ;5>ÿ:7>ÿ<Fÿ;5>ÿNI>GUÿ<FÿN<:G;ÿF<Gÿ;5>ÿK:GK<7>ÿ<Fÿ6E6;69;6EHÿ;5>ÿD6L6Iÿ?<DU>;ÿ75>>;Sÿ45>ÿ6EF<G=9;6<EÿD<E;96E>?
5>G>6EÿE>6;5>GÿG>KI9D>7ÿE<Gÿ7:KKI>=>E;7ÿ;5>ÿF6I6EHÿ9E?ÿ7>GL6D>ÿ<FÿKI>9?6EH7ÿ<Gÿ<;5>GÿK9K>G7ÿ97ÿG>T:6G>?ÿMJÿI9VSÿ4567ÿF<G=ÿ67ÿ9:;5<G6W>?ÿF<G
:7>ÿ<EIJÿ6Eÿ;5>ÿX67;G6D;ÿ<FÿYG6W<E9S
!20ÿZ/[\.030]ÿZ/-01ÿ^2003ÿ[_^3ÿ̀0ÿ\1,a30]ÿ],10Z3.bÿ3/ÿc#*ÿda]ÿe,.0]ÿd^ÿdaÿd33dZ2[0a3ÿ3/ÿ320
(/[\.d,a3ÿ/1ÿ/3,Z0ÿ/eÿ'0[/-d.f
a,30]ÿ%3d30^ÿ#0\d13[0a3ÿ/e
q/[0.da]ÿ%0Z_1,3bÿkÿa,30]ÿ%3d30^ÿ/e
&[01,Zdÿkÿ&.0rda]1/ÿldb/1md^ÿo
%0Z103d1bÿ/eÿq/[0.da]ÿ%0Z_1,3bk
!1/bÿl,..01ÿoÿ&Z3,asÿ(/[[,^^,/a01
% 3d30
ÿ/e
ÿ&1
,j/ad ÿ
kÿ
ld 1mÿn1a
c.d,a3,eeg7hi&33/1a0bÿp0a01d.ÿ/eÿ&1,j/ad/-,Z
2 ÿ
o #0e0a]da3g7hi/ eÿa,30]ÿ%3d30^ÿ(_^3/[^ÿda]
n/1]01ÿc1/30Z3,/akÿ!d0ÿt/2a^/aÿo
&Z3,asÿ#,10Z3/1ÿ/eÿa,30]ÿ%3d30^
[[,s1d3,/aÿda]ÿ(_^3/[^
"ae/1Z0[0a3kÿ!1dZbÿ'0ad_]ÿoÿ&Z3,as
#,10Z3/1ÿ/eÿf%fÿ(,3,j0a^2,\ÿda]
[[,s1d3,/aÿ%01-,Z0^
N<:E;Jÿ<Fÿu>76?>ED>iÿv9G6D<K9 N<:E;Jÿ<Fÿu>76?>ED>iÿv9G6D<K9
N<:E;Jÿw5>G>ÿNI96=ÿx<Gÿu>I6>FÿYG<7>iÿv9G6D<K9 ÿ
ÿ
yI96E;6FFz7ÿY;;Jg7hi X>F>E?9E;z7ÿY;;Jg7hi
n1_aaÿ{d..ÿ'/b^]0aÿ oÿ&^^,^3da3ÿ&33/1a0b
p0a01d.ÿ
&1,j/ad&33/1a0bÿp0a01d.|^ÿ)ee,Z0ÿ ÿ
}~~ÿfÿ(0a31d.ÿ&-0fÿ
c2/0a,€oÿ&1,j/adÿÿ~~‚ÿ
ƒ„~}…ÿ‚}†‡
ÿ
t/^0\2ÿ&fÿˆda0e,0.]ÿoÿ&^^,^3da3ÿ&33/1a0bÿp0a01d.ÿ
&1,j/adÿ&33/1a0bÿp0a01d.|^ÿ)ee,Z0ÿ
}~~ÿfÿ(0a31d.ÿ&-0fÿ ÿ
c2/0a,€oÿ&1,j/adÿÿ~~‚ÿ
ƒ„~}…ÿ‚}†~~
ÿ
#10‰ÿ(_13,^ÿ"a^,saÿoÿ&^^,^3da3ÿ&33/1a0bÿp0a01d.ÿ
&1,j/adÿ&33/1a0bÿp0a01d.|^ÿ)ee,Z0ÿ
}~~ÿfÿ(0a31d.ÿ&-0fÿ ÿ
c2/0a,€oÿ&1,j/adÿÿ~~‚ÿ
ƒ„~}…ÿ‚}†}}
56678911

 86811687 410

01210304 56678911


Case 2:21-cv-00186-DLR  8681-1
Document 1Filed
102/03/21
68Page
7 2 of 2
ÿ
 !"#$ÿ&'ÿ()*#+,!)#ÿ-ÿ..,.!)!ÿ!!#/0$
100/)+ÿ
/,2#)!!#/0$ÿ100/)+3.ÿ455,60ÿ ÿ
7889ÿ('ÿ:0!/)+ÿ;0'ÿ
<"#0,=-ÿ/,2#)ÿÿ>988?ÿ
@A87Bÿ9?7C>>A8
ÿ
&#D0/!ÿE)F)/ÿ-ÿ..,.!)!ÿ!!#/0$ÿ100/)+ÿ
/,2#)ÿ!!#/0$ÿ100/)+3.ÿ455,60ÿ
7889ÿ('ÿ:0!/)+ÿ;0'ÿ ÿ
<"#0,=-ÿ/,2#)ÿÿ>988?ÿ
@A87Bÿ9?7C?G>H
ÿ
IIJÿKLMNMÿOPÿQRSNMTNUVNOWXÿ 7'ÿY'Z'ÿ1#;0/[0!ÿ\050])!
ÿ
IIIJÿ^NVN_`WMaNbÿOPÿcSNWUNbLd
cLSVǸMÿ@\,;0/.,!$ÿ:).0.ÿ4 +$B
cdLNWVNPPXe(f
g`P`WTLWVXe(f
ÿ
IhJÿiSNjNWÿXÿ k'ÿ4/,l,)+ÿ</#600],l
ÿ
hJÿmLVRS`ÿOPÿnRNVXÿ >HHÿ][,,.!/)!,;0ÿ</#60]o/0ÿ6!f&0;,0pÿ#/ÿ**0)+ÿ#5ÿl06$ÿ\06,.,#
ÿ
hIJ^LRM`ÿOPÿqUVNOWXÿ 9ÿY'Z':'ÿr87-ÿr8G-ÿr8A
ÿ
hIIJÿs`tR`MV̀TÿNWÿ^OubdLNWV
^dLMMÿqUVNOWX(#
gOddLSÿg`uLWTX
QRSvÿg`uLWTX(#
hIIIJÿwaNMÿULM`ÿ,.ÿ#!ÿ/0+)!0]ÿVOÿLWOVa`SÿULM`J
Z,l)!o/0xÿÿy/o ÿz'ÿ&#$.]0ÿ{{{
ÿÿÿÿÿÿÿÿ\)!0xÿÿ7fGf787k
{5ÿ)$ÿ#5ÿ!",.ÿ,5#/[)!,#ÿ,.ÿ,6#//06!-ÿ*+0).0ÿl#ÿD)6Fÿ!#ÿ!"0ÿ:,;,+ÿ:#;0/ÿZ"00!ÿ{*o!ÿ5#/[ÿo.,lÿ!"0ÿ|}~ÿDo!!#ÿ,ÿ$#o/ÿD/#p.0/
)]ÿ6")l0ÿ,!'ÿ4 60ÿ6#//06!-ÿ.);0ÿ!",.ÿ5#/[ÿ).ÿ)ÿ<\€ÿ)]ÿ,6+o]0ÿ,!ÿ).ÿ)ÿ)!!)6"[0!ÿ!#ÿ$#o/ÿ6).0ÿ#*0,lÿ]#6o[0!.'
&0;,.0]xÿ8kf78k?

56678911

 86811687 010

Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 1 of 38

Exhibit A
 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 2 of 38
Secretary
U.S. Department of Homeland Security
Washington, DC 20528

January 20, 2021

MEMORANDUM FOR: Troy Miller

Senior Official Performing the Duties of the Commissioner
U.S. Customs and Border Protection

Tae Johnson
Acting Director
U.S. Immigration and Customs Enforcement

Tracey Renaud
Senior Official Performing the Duties of the Director
U.S. Citizenship and Immigration Services

CC: Karen Olick

Chief of Staff

FROM: David Pekoske

Acting Secretary

SUBJECT: Review of and Interim Revision to Civil Immigration

Enforcement and Removal Policies and Priorities
______________________________________________________________________________

This memorandum directs Department of Homeland Security components to conduct a

review of policies and practices concerning immigration enforcement. It also sets interim
policies during the course of that review, including a 100-day pause on certain removals to
enable focusing the Department’s resources where they are most needed. The United States
faces significant operational challenges at the southwest border as it is confronting the most
serious global public health crisis in a century. In light of those unique circumstances, the
Department must surge resources to the border in order to ensure safe, legal and orderly
processing, to rebuild fair and effective asylum procedures that respect human rights and due
process, to adopt appropriate public health guidelines and protocols, and to prioritize responding
to threats to national security, public safety, and border security.

This memorandum should be considered Department-wide guidance, applicable to the

activities of U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border
Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS).
 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 3 of 38

A. Comprehensive Review of Enforcement Policies and Priorities

The Chief of Staff shall coordinate a Department-wide review of policies and practices
concerning immigration enforcement. Pursuant to the review, each component shall develop
recommendations to address aspects of immigration enforcement, including policies for
prioritizing the use of enforcement personnel, detention space, and removal assets; policies
governing the exercise of prosecutorial discretion; policies governing detention; and policies
regarding interaction with state and local law enforcement. These recommendations shall ensure
that the Department carries out our duties to enforce the law and serve the Department’s mission
in line with our values. The Chief of Staff shall provide recommendations for the issuance of
revised policies at any point during this review and no later than 100 days from the date of this
memo.

The memoranda in the attached appendix are hereby rescinded and superseded.

B. Interim Civil Enforcement Guidelines

Due to limited resources, DHS cannot respond to all immigration violations or remove all
persons unlawfully in the United States. Rather, DHS must implement civil immigration
enforcement based on sensible priorities and changing circumstances. DHS’s civil immigration
enforcement priorities are protecting national security, border security, and public safety. The
review directed in section A will enable the development, issuance, and implementation of
detailed revised enforcement priorities. In the interim and pending completion of that review,
the Department’s priorities shall be:

1. National security. Individuals who have engaged in or are suspected of terrorism or

espionage, or whose apprehension, arrest and/or custody is otherwise necessary to
protect the national security of the United States.
2. Border security. Individuals apprehended at the border or ports of entry while
attempting to unlawfully enter the United States on or after November 1, 2020, or
who were not physically present in the United States before November 1, 2020.
3. Public safety. Individuals incarcerated within federal, state, and local prisons and
jails released on or after the issuance of this memorandum who have been convicted
of an “aggravated felony,” as that term is defined in section 101(a) (43) of the
Immigration and Nationality Act at the time of conviction, and are determined to pose
a threat to public safety.

These priorities shall apply not only to the decision to issue, serve, file, or cancel a Notice
to Appear, but also to a broad range of other discretionary enforcement decisions, including
deciding: whom to stop, question, and arrest; whom to detain or release; whether to settle,
dismiss, appeal, or join in a motion on a case; and whether to grant deferred action or parole. In

2
 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 4 of 38

addition, all enforcement and detention decisions shall be guided by DHS’s ability to conduct
operations and maintain custody consistent with applicable COVID-19 protocols.

While resources should be allocated to the priorities enumerated above, nothing in this
memorandum prohibits the apprehension or detention of individuals unlawfully in the United
States who are not identified as priorities herein. In order to ensure appropriate allocation of
resources and exercise of prosecutorial discretion, the Acting Director of ICE shall issue
operational guidance on the implementation of these priorities. This guidance shall contain a
protocol for the Acting Secretary to conduct a periodic review of enforcement actions to ensure
consistency with the priorities set forth in this memorandum. This guidance shall also include a
process for the Director of ICE to review and approve of any civil immigration enforcement
actions against individuals outside of federal, state or local prisons or jails.

These interim enforcement priorities shall go into effect on February 1, 2021 and remain
in effect until superseded by revised priorities developed in connection with the review directed
in section A.

C. Immediate 100-Day Pause on Removals

In light of the unique circumstances described above, DHS’s limited resources must be
prioritized to: (1) provide sufficient staff and resources to enhance border security and conduct
immigration and asylum processing at the southwest border fairly and efficiently; and (2) comply
with COVID-19 protocols to protect the health and safety of DHS personnel and those members
of the public with whom DHS personnel interact. In addition, we must ensure that our removal
resources are directed to the Department’s highest enforcement priorities. Accordingly, and
pending the completion of the review set forth in section A, I am directing an immediate pause
on removals of any noncitizen 1 with a final order of removal (except as noted below) for 100
days to go into effect as soon as practical and no later than January 22, 2021.

The pause on removals applies to any noncitizen present in the United States when this
directive takes effect with a final order of removal except one who:

1. According to a written finding by the Director of ICE, has engaged in or is

suspected of terrorism or espionage, or otherwise poses a danger to the national
security of the United States; or
2. Was not physically present in the United States before November 1, 2020; or
3. Has voluntarily agreed to waive any rights to remain in the United States,
provided that he or she has been made fully aware of the consequences of waiver

1
“Noncitizen” as used in this memorandum does not include noncitizen nationals of the United
States.
3
 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 5 of 38

and has been given a meaningful opportunity to access counsel prior to signing
the waiver; 2 or
4. For whom the Acting Director of ICE, following consultation with the General
Counsel, makes an individualized determination that removal is required by law.

No later than February 1, 2021, the Acting Director of ICE shall issue written instructions
with additional operational guidance on the further implementation of this removal pause. The
guidance shall include a process for individualized review and consideration of the appropriate
disposition for individuals who have been ordered removed for 90 days or more, to the extent
necessary to implement this pause. The process shall provide for assessments of alternatives to
removal including, but not limited to, staying or reopening cases, alternative forms of detention,
custodial detention, whether to grant temporary deferred action, or other appropriate action.

D. No Private Right Statement

These guidelines and priorities are not intended to, do not, and may not be relied upon to
create any right or benefit, substantive or procedural, enforceable at law by any party in any
administrative, civil, or criminal matter.

2
A voluntary waiver encompasses noncitizens who stipulate to removal as part of a criminal
disposition.
4
 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 6 of 38

APPENDIX

Department of Homeland Security, Enforcement of the Immigration Laws to Serve the National
Interest, Memorandum of February 20, 2017.

U.S. Immigration and Customs Enforcement, Implementing the President’s Border Security and
Interior Immigration Enforcement Policies, Memorandum of February 20, 2017.

U.S. Immigration and Customs Enforcement, Guidance to OPLA Attorneys Regarding the
Implementation of the President’s Executive Orders and the Secretary’s Directives on
Immigration Enforcement, Memorandum of August 15, 2017.

US Citizenship and Immigration Services, Updated Guidance for the Referral of Cases and
Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens,
Policy Memorandum of June 28, 2018. (US Citizenship and Immigration Services should revert
to the preexisting guidance in Policy Memorandum 602-0050, US Citizenship and Immigration
Services, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs)
in Cases Involving Inadmissible and Removable Aliens, Policy Memorandum of Nov. 7, 2011.)

US Citizenship and Immigration Services, Guidance for the Referral of Cases and Issuance of
Notices to Appear (NTAs) When Processing a Case Involving Information Submitted by a
Deferred Action for Childhood Arrivals (DACA) Requestor in Connection with a DACA Request
or a DACA-Related Benefit Request (Past or Pending) or Pursuing Termination of DACA, Policy
Memorandum of June 28, 2018.

U.S. Customs and Border Protection, Executive Orders 13767 and 13768 and the Secretary’s
Implementation Directions of February 17, 2017, Memorandum of February 21, 2017.
Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 7 of 38

Exhibit B
 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 8 of 38
Texas v. United States, --- F.Supp.3d ---- (2021)
2021 WL 247877

[5] balance of equities and public interest favored issuance of

TRO; and
2021 WL 247877
Only the Westlaw citation is currently available.
[6] issuance of nationwide TRO was warranted.
United States District Court,
S.D. Texas, Victoria Division.
Motion granted.
State of TEXAS, Plaintiff,
v.
Procedural Posture(s): Motion for Temporary Restraining
The UNITED STATES of America; David Pekoske,
Order (TRO).
Acting Secretary of the United States Department
of Homeland Security, in his official capacity;
United States Department of Homeland Security; West Headnotes (14)
Troy Miller, Senior Official Performing the
Duties of the Commissioner of U.S. Customs and [1] Injunction
Border Protection, in his official capacity; U.S. Injunctive relief is extraordinary remedy that
Customs and Border Protection; Tae Johnson, may be awarded only upon clear showing that
Acting Director of U.S. Immigration and Customs plaintiff is entitled to such relief.
Enforcement, in his official capacity; U.S.
Immigration and Customs Enforcement; Tracy
Renaud, Senior Official Performing the Duties of the [2] Injunction
Director of the U.S. Citizenship And Immigration Preliminary injunction may issue only where (1)
Services, in her official capacity; and U.S. there is substantial likelihood that movant will
Citizenship and Immigration Services, Defendants. prevail on merits; (2) there is substantial threat
that irreparable harm will result if injunction
Civil Action No. 6:21-cv-00003 is not granted; (3) threatened injury outweighs
| threatened harm to defendant; and (4) granting
Signed 01/26/2021 of preliminary injunction will not disserve public
interest.
Synopsis
Background: State of Texas brought action challenging
legality of Department of Homeland Security's (DHS)
[3] Injunction
announcement that it would place 100-day pause on removals.
State moved for temporary restraining order (TRO). Temporary restraining order (TRO) is meant only
to preserve status quo for very brief time, so as
to avoid irreparable injury pending hearing on
issuance of preliminary injunction.
Holdings: The District Court, Drew B. Tipton, J., held that:

[1] state suffered sufficiently concrete injury to establish

[4] Injunction
standing to bring action;
In ruling on motion for temporary restraining
[2] state was likely to succeed on merits of its claim that 100- order (TRO), if currently existing status quo
day pause violated Immigration and Nationality Act (INA); itself is causing party irreparable injury, it is
necessary to alter situation so as to prevent injury,
[3] state was likely to succeed on merits of its claim that 100- by, inter alia, returning to last uncontested status
day pause was arbitrary and capricious; quo between parties.

[4] state demonstrated substantial threat of irreparable injury;

[5] Injunction

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 1

 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 9 of 38
Texas v. United States, --- F.Supp.3d ---- (2021)
2021 WL 247877

State of Texas suffered sufficiently concrete DHS's claim that pause was necessary to
injury to establish standing to bring action to provide sufficient staff and resources to enhance
enjoin federal government's 100-day pause on border security and conduct immigration and
removals by alleging that it faced “millions of asylum processing at southwest border fairly
dollars of losses” in spending on public services and efficiently and to comply with COVID-19
to illegal aliens. protocols; memorandum announcing pause
failed to consider potential policies more limited
in scope and time or to provide any concrete,
[6] Injunction reasonable justification for pause. 5 U.S.C.A.
State of Texas was likely to succeed on merits of § 706(2)(A).
its claim that Department of Homeland Security's
(DHS) announcement that it would place 100-
day pause on removals violated Immigration [9] Administrative Law and Procedure
and Nationality Act's (INA) requirement that
Federal administrative agencies are required
“when an alien is ordered removed, the Attorney
General shall remove the alien from the to engage in reasoned decision-making. 5
United States within a period of 90 days,” U.S.C.A. § 706(2)(A).
for purposes of determining Texas's entitlement
to temporary restraining order (TRO), despite
INA's jurisdictional bar against claims arising [10] Administrative Law and Procedure
from government's decision or action to execute Not only must agency's decreed result be within
removal orders brought “by or on behalf of scope of its lawful authority, but process by
any alien”; statute's 90-day removal rule was which it reaches that result must be logical and
mandatory, and Texas did not bring action on
rational. 5 U.S.C.A. § 706(2)(A).
“behalf of any alien.” 5 U.S.C.A. § 701(a)(1);
Immigration and Nationality Act §§ 241, 242,
8 U.S.C.A. §§ 1231(a)(1)(A), 1252(g). [11] Injunction
To establish substantial threat of irreparable
injury required for temporary restraining order
[7] Administrative Law and Procedure (TRO), movant's injury need not have already
Agency's actions are “final” and subject to been inflicted or be certain to occur; strong threat
review under Administrative Procedure Act of irreparable injury before trial on merits is
(APA) where (1) action marks consummation of adequate.
agency's decision-making process and (2) action
is one by which rights or obligations have been
determined. 5 U.S.C.A. § 704. [12] Injunction
State of Texas demonstrated substantial threat
of irreparable injury, as factor for temporary
[8] Injunction restraining order (TRO) in its action challenging
State of Texas was likely to succeed on legality of Department of Homeland Security's
merits of its claim that Department of (DHS) announcement that it would place 100-
Homeland Security's (DHS) announcement that day pause on removals; state paid millions of
it would place 100-day pause on removals dollars annually to provide social services and
was arbitrary and capricious, in violation uncompensated healthcare expenses and other
of Administrative Procedure Act (APA), for state-provided benefits to removable noncitizens
purposes of determining Texas's entitlement that it could not recover by suing federal
to temporary restraining order (TRO), despite government.

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 2

 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 10 of 38
Texas v. United States, --- F.Supp.3d ---- (2021)
2021 WL 247877

Adam David Kirschner, Pro Hac Vice, USDOJ, Civil

Division, Washington, DC, Brian C. Rosen-Shaud, for
[13] Injunction
Defendants David Pekoske, Troy Miller, Tracy Renaud.
Balance of equities and public interest favored
issuance of temporary restraining order (TRO) Adam David Kirschner, Pro Hac Vice, USDOJ, Civil
in action by state of Texas challenging legality Division, Brian C. Rosen-Shaud, Pro Hac Vice, US
of Department of Homeland Security's (DHS) Department of Justice, Washington, DC, for Defendant Tae
announcement that it would place 100-day pause Johnson.
on removals; DHS was free to conduct measured
and considered assessment of immigration
policies regardless of existence of 100-day ORDER GRANTING PLAINTIFF'S
pause, and any inefficiency suffered by federal EMERGENCY APPLICATION FOR A
immigration authorities caused by immediate TEMPORARY RESTRAINING ORDER
injunction was outweighed by losses that state
would face. Drew B. Tipton, UNITED STATES DISTRICT JUDGE

*1 The State of Texas requests a Temporary Restraining

Order (“TRO”) to enjoin Defendants from executing a 100-
[14] Injunction
day pause on the removal of aliens already subject to a
Issuance of nationwide temporary restraining
final Order of Removal. 1 The 100-day pause was set into
order (TRO) was warranted in state of Texas's
motion through a recent Memorandum of the Department
action challenging legality of Department of
of Homeland Security on January 20, 2021 (the “January
Homeland Security's (DHS) announcement that
20 Memorandum”). (Dkt. No. 2-2). In relevant part, the
it would place 100-day pause on removals; 100-
January 20 Memorandum directs “an immediate pause on
day pause plainly affected national immigration
removals of any noncitizen with a final order of removal ...
policy, partial implementation of TRO would
inevitably detract from Congress's integrated for 100 days.” 2 (Dkt. No. 2-2 at 4–5). After reviewing
scheme of regulation, and geographically limited Texas's Emergency Application, the arguments of Texas's and
TRO would not effectively protect Texas's Defendants' counsel on January 22, 2021, the Defendants'
interests because of free flow of movement Response filed on January 24, 2021, the brief of Amicus,
among states. the record, and the applicable law, the Court finds that
Texas has satisfied the requirements for a TRO. Accordingly,
Texas's Emergency Application for a TRO is GRANTED.
In so doing, the Court makes clear that this Order is not
based on the “Agreement Between Department of Homeland
Attorneys and Law Firms Security and the State of Texas” attached as Exhibit “A”
to Plaintiff's Complaint. The issues implicated by that
Patrick K. Sweeten, William Thomas Thompson, Office of Agreement are of such gravity and constitutional import that
the Attorney General, Austin, TX, for Plaintiff. they require further development of the record and briefing
prior to addressing the merits. Rather, the Court finds that
Adam David Kirschner, Pro Hac Vice, USDOJ, Civil
a TRO maintaining the status quo as it existed prior to the
Division, Washington, DC, Brian C. Rosen-Shaud, Daniel
implementation of the January 20 Memorandum's 100-day
David Hu, Office of the US Attorneys Office, Houston,
pause is appropriate under the Administrative Procedures Act
TX, for Defendants United States of America, United States
(the “APA”). Accordingly, and pursuant to Rule 65 of the
Department of Homeland Security, U.S. Customs and Border
Federal Rules of Civil Procedure, Defendants are enjoined
Protection, U.S. Immigration and Customs Enforcement, U.S.
from executing the 100-day pause on removals for 14 days
Citizenship and Immigration Services.
for the reasons and in the manner described below.

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 3

 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 11 of 38
Texas v. United States, --- F.Supp.3d ---- (2021)
2021 WL 247877

I. LEGAL STANDARD FOR A TEMPORARY omitted); see also United States v. FDIC, 881 F.2d 207,
RESTRAINING ORDER 210 (5th Cir. 1989) (“[T]he district court has the equitable
[1] [2] The standard for issuing a TRO is the same as power to return the parties to their last uncontested status.”).
the standard for issuing a preliminary injunction. See Clark The Court finds that the “last uncontested status quo” here is
v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987). Injunctive the status of Defendants' removal policy prior to issuance of
relief is “an extraordinary remedy” that may be awarded only the January 20 Memorandum's 100-day pause on removals.
upon “a clear showing that the plaintiff is entitled to such See Callaway, 489 F.2d at 576.
relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S.
7, 22, 129 S.Ct. 365, 376, 172 L.Ed.2d 249 (2008). “[S]uch
A. SUBSTANTIAL LIKELIHOOD THAT TEXAS
extraordinary relief would issue only where (1) there is a
WILL PREVAIL ON THE MERITS
substantial likelihood that the movant will prevail on the
A TRO is appropriate only where the plaintiff shows that there
merits; (2) there is a substantial threat that irreparable harm
is a substantial likelihood it will prevail on the merits. Clark,
will result if the injunction is not granted; (3) the threatened
812 F.2d at 993. Indeed, the Fifth Circuit has cautioned that “it
injury outweighs the threatened harm to the defendant; and (4)
is inequitable to temporarily enjoin a party from undertaking
the granting of the preliminary injunction will not disserve the
activity which he has a clear right to pursue.” Seatrain, 518
public interest.” Clark, 812 F.2d at 993. “The party seeking
F.2d at 180.
such relief must satisfy a cumulative burden of proving
each of the four elements enumerated before a temporary
Texas has asserted six claims against Defendants in its
restraining order or preliminary injunction can be granted.”
Complaint. (Dkt. No. 1 at ¶¶ 38–72). At this early stage,
Id. But “none of the four prerequisites has a fixed quantitative
the Court finds Texas has a substantial likelihood of success
value.” State of Tex. v. Seatrain Int'l, S. A., 518 F.2d 175, 180
on at least two: (Count II) Texas's claim that the January
(5th Cir. 1975). “Rather, a sliding scale is utilized, which takes
20 Memorandum's 100-day pause should be set aside
into account the intensity of each in a given calculus.” Id.
(citing Siff v. State Democratic Exec. Comm., 500 F.2d 1307 pursuant to Section 706 of the APA because it violates 8
(5th Cir. 1974)). 3
U.S.C. § 1231(a)(1)(A), and (Count IV) Texas's claim that
Defendants arbitrarily and capriciously departed from its
previous policy without sufficient explanation. To succeed on
II. APPLICATION its Application for a TRO, Texas need only demonstrate a
*2 In its Emergency Application, Texas argues it will likely
succeed on the merits of its challenges to the January 20 likelihood of success on “at least one” claim. See Texas
Memorandum, there is a significant risk it would suffer v. United States, 86 F. Supp. 3d 591, 672 (S.D. Tex.), aff'd,
imminent and irreparable harm if a TRO is not granted, and 809 F.3d 134 (5th Cir. 2015), as revised (Nov. 25, 2015).
a TRO would not harm Defendants or the public. (Dkt. No. 2 The Court defers ruling on the remaining Counts, which
at 7–19). The Court agrees. should not be construed as an indication of the Court's view
of their merits.
[3] [4] Before addressing those elements, the Court pauses
to note a temporary restraining order is meant only to [5] Before addressing Counts II and IV, the Court must
“preserve, for a very brief time, the status quo, so as to briefly address an issue concerning its jurisdiction under
avoid irreparable injury pending a hearing on the issuance Article III. Defendants contend Texas cannot establish
of a preliminary injunction.” Norman Bridge Drug Co. v. standing for these claims since Texas has asserted only “fiscal
Banner, 529 F.2d 822, 829 (5th Cir. 1976). Importantly, “[i]f harm.” (Dkt. No. 8 at 17–18). The Court disagrees. The panel
the currently existing status quo itself is causing one of the in Texas v. United States, addressing similar claims, held
parties irreparable injury, it is necessary to alter the situation that the plaintiff-states had pleaded a sufficiently concrete
so as to prevent the injury, ... by, [inter alia,] returning to the injury by demonstrating the harm to “the states' fisc,” such
last uncontested status quo between the parties.” Canal as “millions of dollars of losses in Texas alone.” 809 F.3d
Auth. of State of Fla. v. Callaway, 489 F.2d 567, 576 (5th 134, 150–61, 162–63 (5th Cir. 2015), aff'd by an equally
Cir. 1974) (emphasis, ellipsis, and alteration added) (citation
divided Court, ––– U.S. ––––, 136 S.Ct. 2271, 195 L.Ed.2d

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 4

 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 12 of 38
Texas v. United States, --- F.Supp.3d ---- (2021)
2021 WL 247877

638 (2016) (mem.). Thus, the Fifth Circuit distinguished

its holding from its previous ruling in Crane v. Johnson, [6] The Court finds that, by ordering a 100-day pause on all
where the plaintiff-state had “waived” the harm-to-public- removals of aliens already subject to a final order of removal,
it appears that the January 20 Memorandum is clearly not in
fisc theory the plaintiff-states advanced in Texas. 809 F.3d
accordance with, or is in excess of, the authority accorded
at 150 n.24. Here, Texas asserts and has provided evidence
that the 100-day pause will result in millions of dollars of to the Attorney General pursuant to 8 U.S.C. § 1231(a)
damage to its public fisc by causing it to increase its spending (1)(A). In other words, the Court disagrees with Defendants'
on public services to illegal aliens. (Dkt. No. 2 at 18; Dkt.
argument that the 100-day pause does not violate § 1231(a)
Nos. 2-4, 2-5). The Court is therefore satisfied for now that
(1)(A). Defendants' argument rests upon an interpretation of
Texas has established an injury-in-fact. The Court also finds,
for now, that Texas's alleged injury is fairly traceable and § 1231(a)(1)(A) that contravenes the unambiguous text.

redressable. See Bennett v. Spear, 520 U.S. 154, 167–71, Section 1231(a)(1)(A) provides that, “when an alien is
117 S.Ct. 1154, 1163–65, 137 L.Ed.2d 281 (1997). ordered removed, the Attorney General shall remove the
alien from the United States within a period of 90 days.”
8 U.S.C. § 1231(a)(1)(A) (emphasis added). “[T]he word
1. Count II: Failure to Remove Illegal ‘shall’ usually connotes a requirement.” Me. Cmty. Health
Aliens in Violation of 8 U.S.C. § 1231 Options v. United States, ––– U.S. ––––, 140 S.Ct. 1308,
1320, 206 L.Ed.2d 764 (2020) (internal quotation omitted).
*3 Texas claims that the 100-day pause violates 8 U.S.C. Here, “shall” means must. Tran v. Mukasey, 515 F.3d 478,
§ 1231(a)(1)(A). (Dkt. No. 1 at ¶¶ 43–49). That section 481–82 (5th Cir. 2008) (“[W]hen a final order of removal has
provides, “when an alien is ordered removed, the Attorney been entered against an alien, the government must facilitate
General shall remove the alien from the United States within that alien's removal from the United States within ninety
a period of 90 days.” 8 U.S.C. § 1231(a)(1)(A) (emphasis days, a period generally referred to as the removal period.”)
added). Texas contends that Defendants' alleged violation of (emphasis added) (citing 8 U.S.C. § 1231(a)(1)(A)). This
§ 1231(a)(1)(A) gives rise to a claim under the APA. (Dkt. mandatory language of § 1231(a)(1)(A) is not neutered by
No. 1 at ¶ 45). In relevant part, § 706 of the APA provides that the federal government's broad discretion in operating “the
“a reviewing court shall hold unlawful and set aside agency
removal system” as a general matter, see, e.g. Arizona v.
action ... found to be (A) ... not in accordance with law” and
United States, 567 U.S. 387, 396–97, 132 S.Ct. 2492, 2499,
“(C) in excess of statutory ... authority.” 5 U.S.C. § 706(2) 183 L.Ed.2d 351 (2012), the existence of statutes and caselaw
(A), (C). Texas argues the 100-day pause on removals is not outlining procedure in the event that practical circumstances
in accordance with law and in excess of the government's
prevent removal within 90 days, see, e.g. 8 U.S.C. §
statutory authority under § 1231(a)(1)(A). (Dkt. No. 1 at ¶
1231(a)(1)(C); Zadvydas v. Davis, 533 U.S. 678, 701, 121
45). Further, Texas avers that Defendants' alleged violation of
S.Ct. 2491, 2505, 150 L.Ed.2d 653 (2001), or regulations
§ 1231(a)(1)(A) causes Texas irreparable harm. (Dkt. No. providing aliens an avenue to request a stay of deportation
1 at ¶ 47). or removal, 8 C.F.R. § 241.6. Where Congress uses specific
language within its immigration statutes to direct the Attorney
Defendants respond that the 100-day pause does not violate General toward a specific result, courts are not free to assume
§ 1231(a)(1)(A) because that provision “does not mandate based on a matrix of principles, statutes, and regulations
removal within the 90-day removal period.” (Dkt. No. 8 at that the Attorney General's authority is simply “a matter of
15). Defendants also assert that Texas's claims are not subject discretion.” Zadvydas, 533 U.S. at 688, 121 S.Ct. at 2497–
to judicial review, that the January 20 Memorandum is not 98.
a “final agency action” as provided by 5 U.S.C. § 704, and
Texas's claims are barred by 8 U.S.C. § 1231(h). (Id. at Defendants' arguments that judicial review of the January 20
13–16). Memorandum is improper also fail. To this end, Defendants

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 5

 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 13 of 38
Texas v. United States, --- F.Supp.3d ---- (2021)
2021 WL 247877

sufficiently “final” to satisfy § 704 where (1) the action

advance two arguments. First, Defendants contend that 5
marks the “consummation” of the agency's decision-making
U.S.C. § 701(a)(1), which bars judicial review where a
process and (2) the action is one by which “rights or
“statute[ ] preclude[s] judicial review,” applies here in light
obligations have been determined.” 520 U.S. 154, 177–
of 8 U.S.C § 1252(g). (Dkt. No. 8 at 13). The Court
78, 117 S.Ct. 1154, 1168, 137 L.Ed.2d 281 (1997). Here,
disagrees. In relevant part, § 1252(g) prevents courts the January 20 Memorandum's order “directing an immediate
from exercising jurisdiction over claims arising from the pause on removals of any noncitizen with a final order of
government's decision or action to execute removal orders removal” is sufficiently final and immediate to denote the
brought “by or on behalf of any alien.” 8 U.S.C § 1252(g). consummation of the agency's decision as it relates to a pause
Texas is not an alien. Nor does Texas bring this action in removals. (Dkt. No. 2-2 at 4). As well, it seems clear that
Defendants, through the January 20 Memorandum's 100-day
“on behalf of” any alien. Therefore, § 1252(g) does not pause, have disregarded their previous legal “obligations” and
apply to this Court's review. See Texas, 809 F.3d at 164. adjudication of the aliens' “rights” by inexplicably ordering a
reassessment of all previous orders for removal and plainly
Second, Defendants contend that 5 U.S.C. § 701(a)(2),
which precludes judicial review where “agency action is ignoring the statutory mandate of § 1231(a)(1)(A) to
committed to agency discretion by law,” applies here in remove aliens within 90 days. (Dkt. No. 2-2 at 4-5).
light of Defendants' prosecutorial discretion in matters of
immigration law generally and executing removal orders in Finally, Defendants contend Texas is barred from suing by
particular. (Dkt. No. 8 at 13–14). Here again, the Court 8 U.S.C. § 1231(h). That section states that “nothing” in
disagrees. As explained above, § 1231(a)(1)(A) clearly all of § 1231 “shall be construed to create any substantive
accords no discretion to the Attorney General to blatantly or procedural right or benefit that is legally enforceable by
disregard the 90-day removal rule without finding that an
any party against” the government. 8 U.S.C. § 1231(h).
enumerated exception applies. See, e.g., Tran, 515 F.3d at
481–82 (discussing narrow and explicitly defined exceptions Defendants’ reliance on 8 U.S.C. § 1231(h) overstates the
scope of that subsection's limitations. The Supreme Court in
to the mandatory 90-day removal rule in 8 U.S.C.§ 1231(a)
Zadvydas explained that, although § 1231(h) “forbids
(6)); Heckler v. Chaney, 470 U.S. 821, 832–34, 105 S.Ct. courts to construe that section ‘to create any ... procedural
1649, 1656–57, 84 L.Ed.2d 714 (1985) (finding that the right or benefit that is legally enforceable,” it in no way
normal presumption that the Executive's nonenforcement of
a statute is unreviewable is rebuttable where “the substantive “deprive[s] an alien of the right to rely on 28 U.S.C. § 2241
statute has provided guidelines for the agency to follow in to challenge detention that is without statutory authority.”

exercising its enforcement powers”). Cf. Brief for the 533 U.S. at 678–88, 121 S.Ct. at 2497. Similarly, here,
Petitioners at *26–28, Reno v. Ma (Zadvydas v. Davis), § 1231(h) does not preclude Texas from challenging §
533 U.S. 678, 121 S.Ct. 2491 (No. 00-38) (2000 WL
1231(a)(1)(A) under 5 U.S.C. § 706.
1784982) (arguing on behalf of the Attorney General that
the language of 8 U.S.C. § 1231(a)(2) is mandatory and The Court therefore finds Texas has demonstrated a
that § 1231(a)(6)'s provision of discretionary authority substantial likelihood of success on its claim that the January
is exceptional). Thus, Defendants do not have discretion to 20 Memorandum's 100-day pause on removals violates 8
completely disregard § 1231(a)(1)(A) and their January 20 U.S.C. § 1231(a)(1)(A).
Memorandum appearing to do so is reviewable.

*4 [7] Defendants' argument that the January 20 2. Count IV: Arbitrary and Capricious
Memorandum is not a “final agency action” subject to review
[8] Texas argues that the January 20 Memorandum is
under 5 U.S.C. § 704 also fails. In Bennett v. Spear,
arbitrary and capricious because it was issued “without any
the Supreme Court explained that an agency's actions are
consideration whatsoever of a [more limited] policy.” (Dkt.

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 6

 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 14 of 38
Texas v. United States, --- F.Supp.3d ---- (2021)
2021 WL 247877

health and safety of DHS personnel and those members of

No. 2 at 12) (quoting Dep't of Homeland Sec. v. Regents of
the public with whom DHS personnel interact.” (Id. at 3).
the Univ. of Cal., ––– U.S. ––––, 140 S.Ct. 1891, 1912, 207
The January 20 Memorandum also provides that DHS “must
L.Ed.2d 353 (2020)). Defendants disagree, contending DHS
ensure that [the agency's] removal resources are directed to
“not only considered but enacted a specifically limited interim
the Department's highest enforcement priorities.” (Id.). DHS,
policy,” the January 20 Memorandum's terms are “limited
however, never explains how the pause in removals helps
in both scope and time, and [they exempt] four classes of
accomplish these goals. It remains unknown why a 100-day
aliens from the pause on removal.” (Dkt. No. 8 at 16). The
pause is needed given the allegedly “unique circumstances”
Court agrees with Texas and finds Defendants' assertions
to which the January 20 Memorandum alludes. Indeed,
unpersuasive.
despite such unique circumstances, DHS did not state or
explain why 100 days specifically is needed to accomplish
[9] [10] The APA prohibits agency actions that are
these goals. The silence of the January 20 Memorandum
“arbitrary, capricious, an abuse of discretion, or otherwise not
on these questions indicates that the terms provided for in
in accordance with law.” 5 U.S.C. § 706(2)(A). Federal the Memorandum were not a result of “reasoned decision-
administrative agencies are required to engage in “reasoned
making.” Allentown Mack Sales, 522 U.S. at 374, 118
decision-making.” Allentown Mack Sales & Serv., Inc. v. S.Ct. at 826.
NLRB, 522 U.S. 359, 374, 118 S.Ct. 818, 826, 139 L.Ed.2d
797 (1998) (internal quotation omitted). “Not only must an *5 The Court recognizes that the TRO process is expedited,
agency's decreed result be within the scope of its lawful and the record and briefing are abbreviated at this point. With
authority, but the process by which it reaches that result must an eye towards the preliminary injunction stage, Defendants
be logical and rational.” Id. Put differently, “agency action will have an opportunity to supplement the record. 4
is lawful only if it rests ‘on a consideration of the relevant
Accordingly, the Court finds that Texas has established a
factors.’ ” Michigan v. EPA, 576 U.S. 743, 750, 135
substantial likelihood that it will prevail on the merits of at
S.Ct. 2699, 2706, 192 L.Ed.2d 674 (2015) (quoting Motor least these two claims.
Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866–67, 77
L.Ed.2d 443 (1983)). B. SUBSTANTIAL THREAT OF IRREPARABLE
HARM
Here, the January 20 Memorandum not only fails to [11] In addition to showing a likelihood of success on
consider potential policies more limited in scope and the merits of a claim, Texas is required to demonstrate “a
time, but it also fails to provide any concrete, reasonable substantial threat of irreparable injury if the injunction is not
justification for a 100-day pause on deportations. The issued.” Texas, 809 F.3d at 150. To meet this requirement,
January 20 Memorandum states that the 100-day pause Texas's injury “need not have already been inflicted or be
is required to assess immigration policies because of the certain to occur; a strong threat of irreparable injury before a
“unique circumstances” present with respect to immigration, trial on the merits is adequate.” Texas v. United States, 328 F.
including “significant operational challenges at the southwest Supp. 3d 662, 736 (S.D. Tex. 2018) (Hanen, J.).
border as [the United States] is confronting the most serious
global public health crisis in a century.” (Dkt. No. 2-2 [12] In this case, Texas has presented evidence it
at 2). DHS specifically cites to its apparent (1) need for would suffer injuries for various reasons if an injunction
a comprehensive review of enforcement policies, (2) need is not entered. First, Texas demonstrates that it pays
for interim civil enforcement guidelines, and (3) “limited millions of dollars annually to provide social services and
resources” that would necessitate a pause in executing uncompensated healthcare expenses and other state-provided
removal orders. (Id. at 2–5). Additionally, the January 20 benefits to illegal aliens such as the Emergency Medicaid
Memorandum states that the 100-day pause in deportations program, the Family Violence Program, and the Texas
is necessary to “(1) provide sufficient staff and resources to Children's Health Insurance Program. (Dkt. No. 2 at 16–
enhance border security and conduct immigration and asylum 17). Additionally, Texas has presented evidence that it would
processing at the southwest border fairly and efficiently; incur increased educational costs. (Dkt. No. 2 at 17). Texas
and (2) comply with COVID-19 protocols to protect the

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 7

 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 15 of 38
Texas v. United States, --- F.Supp.3d ---- (2021)
2021 WL 247877

asserts that these expenses will grow because of the January would disrupt the Administration's careful calibration of how
20 Memorandum. (Dkt. No. 2 at 16). The January 20 to conduct a necessary review.” (Id.).
Memorandum expressly states that the Acting Director of ICE
“shall provide for alternatives to removal” for those who have [13] The Court finds Defendants' arguments unpersuasive.
already been ordered to be removed, including but not limited Defendants are free to conduct a “measured and considered
to “whether to grant temporary deferred action.” (Dkt. No. assessment” of immigration policies regardless of the
2-2). In light of this mandatory reassessment for “alternatives existence of the January 20 Memorandum's 100-day pause.
to removal,” Texas anticipates suffering financial harm from
Furthermore, the Fifth Circuit explained in Texas that
which it cannot recover by suing the federal government. See
“any inefficiency” suffered by federal immigration authorities
Texas, 328 F. Supp. 3d at 737 (citing Texas v. United States, caused by an immediate injunction is outweighed by the
106 F.3d 661, 662 (5th Cir. 1997)).
losses a plaintiff State would face. 809 F.3d at 187
(emphasis added).
Further, Texas argues that “the categorical refusal to remove
aliens ordered removable will encourage additional illegal
Indeed, courts have recognized that the public interest is
immigration into Texas,” thereby exacerbating its public
service costs. (Dkt. No. 2 at 17). During the January 22, 2021 served by the execution of removal orders. See Nken
hearing, Texas argued that the January 20 Memorandum's v. Holder, 556 U.S. 418, 436, 129 S.Ct. 1749, 1762, 173
pause on removals increases its fiscal burden not only because L.Ed.2d 550 (2009) (“There is always a public interest in
of those aliens illegally present in Texas, but also because of prompt execution of removal orders.” (emphasis added)); see
those who may find their way to Texas from other states in also Blackie's House of Beef, Inc. v. Castillo, 659 F.2d.
the near future. Such injury is not, as a legal matter, purely 1211, 1221 (D.C. Cir. 1981) (collecting cases to support the
speculative. The Fifth Circuit has expressly found that injuries proposition that “the public interest in enforcement of the
to one state can flow from the fact that illegal aliens are “free immigration laws is significant” (emphasis added)). To this
to move among states.” Texas, 809 F.3d at 188. end, one of Texas's claims involves an allegation that the
January 20 Memorandum's 100-day pause contravenes §
The Court finds that the foregoing establishes a substantial 1231(a)(1)(A)'s mandate that aliens subject to an order of
risk of imminent and irreparable harm to Texas. As a result, removal be removed within 90 days. (Dkt. No. 2 at 10). The
Texas has satisfied this element for a TRO as well. public's interest is not disserved by temporarily enjoining this
policy.
C. SUBSTANTIAL INJURY TO TEXAS
In light of the foregoing, the Court finds that the threat of
OUTWEIGHS HARM TO DEFENDANTS
injury to Texas outweighs any potential harm to Defendants
AND WILL NOT UNDERMINE THE PUBLIC
and the public interest is served and protected by the issuance
INTEREST
of this TRO. The Court therefore finds that Texas has met its
*6 Texas is next required to establish that that the threatened
burden to satisfy these elements for a TRO.
injury outweighs any harm that may result from the injunction
to the non-movant and will not undermine the public interest.
***
Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047, 1051 (5th
Cir. 1997). In summary, Texas has thus far satisfactorily demonstrated it
is entitled to immediate and temporary relief from the January
Texas argues that Defendants cannot be harmed by the 20 Memorandum's 100-day pause on removals. The scope of
TRO because “[t]hey have no legitimate interest in the this relief warrants additional attention.
implementation of an unlawful memorandum.” (Dkt. No.
2 at 19). Defendants disagree and assert that there is a
public interest in “measured and considered assessments of D. SCOPE OF RELIEF
immigration policies by an incoming Administration.” (Dkt. Nationwide injunctions 5 of executive action are a topic of
No. 8 at 13). Defendants further argue that “an injunction here fierce and ongoing debate in both the courts and the legal
academy. Compare, e.g., DHS v. New York, ––– U.S.

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 8

 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 16 of 38
Texas v. United States, --- F.Supp.3d ---- (2021)
2021 WL 247877

––––, 140 S.Ct. 599, 599–601, 206 L.Ed.2d 115 (2020)

at 401, 132 S.Ct. at 2502). The Fifth Circuit in Texas also
(mem.) (Gorsuch, J., concurring) (articulating a common
reasoned that “partial implementation” of the agency action
flaw in “injunctions of ‘nationwide,’ ‘universal,” or ‘cosmic’
being enjoined would detract from the “integrated scheme
scope’); Trump v. Hawaii, ––– U.S. ––––, 138 S.Ct. 2392,
of regulation created by Congress.” Id. at 188 (internal
2424–2429, 201 L.Ed.2d 775 (2018) (Thomas, J., concurring)
quotation omitted). And lastly, the panel found there was “a
(calling the practice of nationwide or “universal” injunctions
substantial likelihood that a geographically-limited injunction
“legally and historically dubious”); Samuel Bray, Multiple
would be ineffective because [illegal aliens] would be free to
Chancellors: Reforming the National Injunction, 131 HARV.
L. REV. 417, 461 (2017) (arguing “[n]ational injunctions move among states.” Id.
interfere with good decisionmaking by the federal judiciary”);
[14] The Fifth Circuit's rationale in affirming a nationwide
with East Bay Sanctuary Covenant v. Barr, 964 F.3d 832,
857 (9th Cir. 2020) (calling nationwide injunctions “uniquely injunction in Texas applies with equal force here. The
appropriate in immigration cases”); Alan M. Trammell, The January 20 Memorandum's 100-day pause plainly affects
Constitutionality of Nationwide Injunctions, 91 U. COLO. national immigration policy, which demands “uniformity.”
L. REV. 977, 980–89 (2020) (arguing nationwide injunctions Id. at 187–88; see also East Bay Sanctuary Covenant,
do not transgress Article III); Amanda Frost, In Defense
of Nationwide Injunctions, 93 N.Y.U. L. REV. 1065, 1080– 964 F.3d at 857 (citing Texas, 809 F.3d at 187–88).
1103 (2018) (arguing nationwide injunctions are appropriate Because the January 20 Memorandum's 100-day pause
as a constitutional and prudential matter); see also Alan impacts numerous statutes and agency regulations concerning
M. Trammel, Demystifying Nationwide Injunctions, 98 TEX. removals and detention periods, its partial implementation
L. REV. 67, 103–116 (2019) (proposing a “preclusion- would inevitably detract from Congress's “integrated scheme
based theory of nationwide injunctions”); Jonathan Remy of regulation.” 6 Id. at 188. Lastly, a geographically
Nash, State Standing for Nationwide Injunctions Against the limited injunction of the January 20 Memorandum's 100-
Federal Government, 94 NOTRE DAME L. REV. 1985, 2012 day pause on removals would not effectively protect Texas's
(2019) (discussing at length the interplay between standing interests because of the free flow of movement among the
doctrine and nationwide injunctions where states seek relief states. In other words, many individuals who are subject to
against the federal government and concluding narrowly an order of removal in other states whose removal is delayed
that “special solicitude should make nationwide injunctions or ultimately deferred may migrate to Texas. As described
potentially available in cases where plaintiff states can allege above, Texas has persuasively demonstrated a substantial risk
standing but other (nonstate) plaintiffs cannot”). of irreparable harm in part because of the potential increased
flow of illegal aliens from other states.
*7 This Court is likewise concerned about the issuance of
nationwide injunctions by a district court. Notwithstanding *8 Accordingly, the Court finds that, under the
its concerns, as a district court, this Court is duty bound to circumstances here, Defendants must be enjoined from
faithfully apply the precedents of its Circuit. The Fifth Circuit executing the January 20 Memorandum's 100-day pause on
has addressed the propriety of a nationwide injunction in the removal of aliens in every place Defendants would have
the immigration context. In Texas, the Fifth Circuit held jurisdiction to implement it.
that “[i]t is not beyond the power of a court, in appropriate
That said, the Court notes that the scope of this injunction is
circumstances, to issue a nationwide injunction.” 809 something it is willing to revisit after the parties fully brief
F.3d. at 188. The “appropriate circumstances” warranting a and argue the issue for purposes of the upcoming motion
nationwide injunction in Texas itself included a need for for preliminary injunction. Though the scope of this TRO is
“uniformity” in immigration policies as prescribed by the broad, it is not necessarily permanent.
Constitution, federal statutes, and Supreme Court precedent.
Id. at 187–88 (citing U.S. CONST. art. I, § 8, cl. 4; III. CONCLUSION
Immigration Reform and Control Act of 1986, Pub. L. No. For the foregoing reasons, the Court GRANTS Texas's
99–603, § 115(1), 100 Stat. 3359, 3384; Arizona, 567 U.S. Emergency Application. (Dkt. No. 2). Therefore, it is hereby
ORDERED that:

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 9

 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 17 of 38
Texas v. United States, --- F.Supp.3d ---- (2021)
2021 WL 247877

1. Defendants and all their respective officers, agents, 4. Finally, the Court ORDERS the parties to propose a
servants, employees, attorneys, and other persons who briefing schedule no later than Thursday, January 28,
are in active concert or participation with them are 2021 at 12:00 p.m. with respect Texas's Request for
hereby ENJOINED and RESTRAINED from enforcing Preliminary Injunction in its Complaint. The parties
and implementing the policies described in the January should also address whether expedited discovery is
20 Memorandum in Section C entitled “Immediate 100- necessary and the contours and scheduling for same. The
Day Pause on Removals.” 7 (Dkt. No. 2-2 at 4–5). Court will promptly schedule a hearing on the Motion
for Preliminary Injunction, if requested and necessary.
2. This TRO is granted on a nationwide basis and
prohibits enforcement and implementation of the
It is SO ORDERED.
policies described in the January 20 Memorandum
in Section C entitled “Immediate 100-Day Pause on
Removals” in every place Defendants have jurisdiction All Citations
to enforce and implement the January 20 Memorandum.
--- F.Supp.3d ----, 2021 WL 247877
3. No security bond is required under Federal Rule of Civil
Procedure 65(c).

Footnotes

1 “[I]n the deportation context, a ‘final order of removal’ is a final order concluding that the alien is deportable
or ordering deportation.” Nasrallah v. Barr, ––– U.S. ––––, 140 S.Ct. 1683, 1690, 207 L.Ed.2d 111 (2020).
2 The January 20 Memorandum excludes from the 100-day pause any alien with a final removal order who:
1. According to a written finding by the Director of ICE, has engaged in or is suspected of terrorism or
espionage, or otherwise poses a danger to the national security of the United States; or
2. Was not physically present in the United States before November 1, 2020; or
3. Has voluntarily agreed to waive any rights to remain in the United States, provided that he or she has
been made fully aware of the consequences of waiver and has been given a meaningful opportunity
to access counsel prior to signing the waiver; or
4. For whom the Acting Director of ICE, following consultation with the General Counsel, makes an
individualized determination that removal is required by law.
(Dkt. No. 2-2 at 4–5 (footnote omitted)).
3
Section 1231 states: “Except as otherwise provided in this section, when an alien is ordered removed,
the Attorney General shall remove the alien from the United States within a period of 90 days.” 8 U.S.C.
§ 1231(a)(1)(A).
4 The Court notes, however, that “the grounds upon which an administrative order must be judged are those
upon which the record discloses that its action was based.” SEC v. Chenery Corp., 318 U.S. 80, 87, 63
S.Ct. 454, 459, 87 L.Ed. 626 (1943).
5 The term “nationwide injunction” is infamously wrought with imprecision. See Alan M. Trammel, Demystifying
Nationwide Injunctions, 98 TEX. L. REV. 67, 72 n.23 (2019) (collecting sources and listing alternatives
commonly used, such as “national injunction,” “defendant-oriented injunction,” and “universal injunction”).
One scholar employs the term “nationwide injunctions,” despite it being a “deeply imperfect term,” because it
appears to be the “most familiar.” Id. at 72. With the same qualification and rationale, the Court does so here.
6 In addition, nationwide injunctions have been found to be appropriate when plaintiffs present claims alleging
that defendant federal agencies have violated the APA. See, e.g., Nat'l Mining Ass'n v. U.S. Army Corps

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 10

 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 18 of 38
Texas v. United States, --- F.Supp.3d ---- (2021)
2021 WL 247877

of Eng'rs, 145 F.3d 1399, 1407–08 (D.C. Cir. 1998) (invalidating an agency rule and affirming the nationwide
injunction); Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989) (“When a reviewing court
determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that
their application to the individual petitioners is proscribed.”). Indeed, other district courts have noted that a
geographically restricted injunction issued to remedy “likely unlawful agency actions” meant to be “appl[ied]
universally” would, among other things, “invite[ ] arbitrary enforcement” on the part of the federal agency
“and create[ ] more questions than it answers.” Make the Rd. New York v. Pompeo, 475 F. Supp. 3d
232, 271 (S.D.N.Y. 2020); see also New York v. United States Dep't of Homeland Sec., 408 F. Supp.
3d 334, 352 (S.D.N.Y. 2019), aff'd as modified, 969 F.3d 42 (2d Cir. 2020). (“A geographically limited
injunction that would result in inconsistent applications of [immigration policy in the context of public charge
determinations] ... is inimical to [the] need for uniformity in immigration enforcement.”). By contrast, a sister
Circuit, presiding over a challenge to certain rules stemming from the implementation of the Affordable
Care Act, vacated the scope of a nationwide injunction “when an injunction that applies only to the plaintiff
states would provide complete relief” to the plaintiffs. California v. Azar, 911 F.3d 558, 584 (9th Cir. 2018)
(emphasis added). As explained in this section, the Court's injunction is consistent with Azar's aim of
providing “complete relief” to the plaintiff.
7 This Order does not in any way limit Defendants' efforts to carry out or adhere to the January
20 Memorandum's other sections, entitled “A. Comprehensive Review of Enforcement Policies and
Priorities,” (Dkt. No. 2-2 at 3), “B. Interim Civil Enforcement Guidelines,” (id.), or “D. No Private Right
Statement,” (id. at 5). This injunction is effective for 14 days as prescribed by Rule 65 of the Federal Rules
of Civil Procedure.

End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works.

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 11

Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 19 of 38

Exhibit C
 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 20 of 38

AGREEMENT BETWEEN THE DEPARTMENT OF HOMELAND SECURITY AND

THE ARIZONA ATTORNEY GENERAL'S OFFICE AND THE ARIZONA
DEPARTMENT OF LAW

The parties to this Sanctuary for Americans First Enactment (SAFE) Agreement (Agreement) are
on the one hand:

(1) The Department of Homeland Security,

(2) U.S. Customs and Border Protection (CBP),
(3) U.S. Immigration and Customs Enforcement (ICE), and
1
(4) U.S. Citizenship and Inunigration Services (USCIS);

and on the other hand:

(5) the Arizona Attorney General's Office and the Arizona Department of Law
(Agency).
I. AUTHOIUTY
The authorities governing this Agreement include, but are not limited to:

(1) Inunigration Refonn and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359, as
amended.
(2) Illegal Inm1igration Reform and Immigrant Responsibility Act of 1996, Pub. L.
No. 104-208, 110 Stat. 3009, as amended.
(3) Privacy Act, 5 U.S.C. Section 552a, as amended.
(4) The Inter-Governmental Cooperation Act, 31 U.S.C. Section 6501, et. seq. as
amended.
(5) Homeland Security Act of 2002, 116 Stat. 2135, 6 U.S.C. Section 101, et seq. as
amended.
(6) Inunigration and Nationality Act, 8 U.S.C. Section 1101, et seq. as amended.

II. PURPOSE AND COMMITMENT

DHS recognizes that Agency, like other state agencies and municipalities, is directly and
concretely affected by changes to DHS rules and policies that have the effect of easing, relaxing,
or limiting immigration enforcement. Such changes can negatively impact Agency's law
enforcement needs and budgets, as well as its other important health, safety, and pecuniary
interests of the State of Arizona. The harm to Agency is particularly acute where Agency's

1
The Department of Homeland Security, CBP, ICE, and USCIS are collectively referred to in
this Agreement as "DHS." The Department of Homeland Security, CBP, ICE, and USCIS enter
into this Agreement individually and collectively, such that termination or removal of one or
more of those parties (whether by law or contract) (including the Department of Homeland
Security) does not terminate this Agreement as to any other parties.
 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 21 of 38

budget has been set months or years in advance and it has no time to adjust its budget to respond
to DHS policy changes. Specifica ll y, DHS recognizes that the fo llowing actions result in direct
and concrete injuries to Agency, including increasing the rate of crime, consumption of public
benefits and services, strain upon the healthcare system, and harm to the environment, as well as
increased economic competition with the State of Arizona ' s current residents for, among other
things, employment, housing, goods and services:

(1) a decrease o f any immigration enforcement priorities;

(2) a voluntary reduction in the number of DHS agents performing immigration
enforcement functions;
(3) a decrease or pause on returns or removals of removable or inadmissible aliens;
(4) a decrease or pause on apprehensions or administrative arrests;
(5) relaxation of the standards for granting relief from return or removal, such as
asylum;
(6) an increase in releases from detention;
(7) a relaxation of the standards for granting release from detention;
(8) changes to inm1igration benefits or eligibility, including work authorization,
discretionary actions, or di scretionary decisions; and
(9) rules, policies, procedures, and decisions that could result in significant increases
to the number of people residing in a community.
At the same time, Agency recognizes that DHS relies on cooperation with Agency and
information shared by Agency to carry out DHS 's functions, including but not limited to
combating financial crimes, internet crimes against children, and human trafficking, as well as
immigration enforcement. Any decrease in a State's or municipality's cooperation or information
sharing with DHS can result in a decrease in these law enforcement priorities.

To that end, this Agreement establishes a binding and enforceable commitment between DHS
and Agency, in which Agency will provide information and assistance to help DHS perform its
border security, legal immigration, immigration enforcement, national security, and other law
enforcement missions in exchange for DHS' s commitment to consult Agency and consider its
views before taking any action, adopting or modifying a policy or procedure, or making any
decision that could:

( 1) reduce, redirect, reprioritize, relax, or in any way modify immigration

enforcement;
(2) decrease the number ofiCE agents performing immigration enforcement duties;
(3) pause or decrease the number of returns or removals of removable or inadmissible
aliens from the country;
(4) increase or decline to decrease the number of lawful, removable, or inadmissible
aliens;
(5) increase or decline to decrease the number of releases from detention;
(6) relax the standards for granting relief from return or removal, such as asylum;

Page 2 of 10
 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 22 of 38

(7) relax the standards for granting release from detention;

(8) relax the standards for, or otherwise decrease the number of, apprehensions or
adm in istrat ive arrests;
(9) increase, expand, extend, or in any other way change the quantity and quality of
immigration benefits or eligibility for other discretionary actions for aliens; or
( 10) otherwise negatively impact Agency.
In case of doubt, DHS will err on the side of consulting with Agency.

III. RESPONSIBILITIES

A. DHS agrees to:

(1) Utilize its immigration authorities, to the maximum extent possible, to prioritize
the protection of the United States and its existing communities. This includes:

a. enforcing the immigration laws of the United States to prohibit the entry
into, and promote the return or removal from, the United States of
inadmi ssible and removable aliens;
b. enfo rcing the immigration laws of the United States to prioritize detention
over release of inadmissible and removable aliens;
c. enforcing the inunigration laws of the United States to apprehend and
administratively arrest inadmissible and removable aliens;
d. eliminating incentives and so-called "pull factors" for illegal immigration;
e. limiting eligibility for asylum and other relief from detention, return, or
removal to the statutory criteria; and
f. refusing asylum and other relief from detention, return, or removal for
those aliens who pose a danger to the United States, whether due to prior
criminal history, the security of the United States, health, or some other
bar.

(2) Consult with Agency before taking any action or making any decision that could
reduce immigration enforcement, increase the number of illegal aliens in the
United States, or increase immigration benefits or eligibility for benefits for
removable or inadmissible aliens . This includes policies, practices, or procedures
which have as their purpose or effect:

a. reducing, redirecting, reprioritizing, relaxing, lessening, eliminating, or in

any way modifying immigration enforcement;
b. decreasing the number of ICE agents within Agency's territorial
jurisdiction performing immigration enforcement duties;
c. pausing or decreasing the number of returns or removals of removable or
inadmissible aliens from the country;
d. decreasing the number of or criteria for detention of removable or
inadmissible aliens from the country;
e. decreasing or pausing apprehensions or administrative arrests;

Page 3 of 10
 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 23 of 38

f. increasing or declining to decrease the number of lawful , removabl e, or

inadmissible aliens residing in the United States;
g. increasing, expanding, extending, or in any way changing the quantity or
quality of immigration benefits or eligibility for these benefits or other
discretionary actions for aliens; or
h. otherwise negatively impacting Agency.

(3) Provide Agency with 180 days' written notice (in the matmer provided for in
Sections IV of this Agreement) of the proposed action and an opportunity to
consult and comment on the proposed action, before taking any such action listed
above.

(4) Consider Agency's input and provide a detailed written explanation of the
reason ing behind any decision to reject Agency's input before taking any action
listed in Section III.A.2.

(5) Err on the side of consulting with Agency in case of doubt as to whether DHS ' s
action is implicated by this provision.

B. Agency agrees to:

(1) Provide the support, cooperation, assistance, and information that is reasonably
necessary for DHS to perform its missions.

(2) To the extent permitted by Agency's budget and resources in the good-faith
determination of the Arizona Attorney General, continue participating in law
enforcement task forces, including working with Homeland Security
Investigations as part of the Financial Crimes Task Force, Internet Crimes Against
Children (ICAC) Task Force, and any applicable anti-human trafficking task
force(s), as well as any future task forces on these subjects. DHS and Agency
understand and agree that the specifics of cooperation for any particular task force
may be governed by a separate agreement regarding the particular task force.

(3) Honor and assist DHS, to the extent consistent with applicable state and federal
law and when covered under Agency's jurisdiction, with (1) ICE or CBP
"detainer requests" or "requests to hold" issued to Agency and (2) DHS requests
for records or information from Agency.

IV. NOTICES

All notices required hereunder shall be given by certified United States mail, postage prepaid
return receipt requested, and addressed to the respective parties at their addresses set forth below,

Page 4 of 10
 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 24 of 38

or at such other address as any party shall hereafter inform the other party by written notice. All
written noti ces so given shall be deemed effective upon receipt.

Department of Homeland Security

Secretary of Homeland Security
Washington , DC 20528

U.S. C ustoms and Border Protection

Office of the Conm1issioner
1300 Pennsylvania Ave. NW
Washington, D.C. 20229

U.S. Immigration and Customs Enforcement

Office of the Director
500 12th Street SW
Washington, D.C. 20536

U.S. Citizenship and Inunigration Services

Office of the Director
5900 Capital Gateway Drive
Suitland, MD 20746

Arizona Attorney General's Office

Attn: ChiefDeputy Attorney General
2005 N . Central Avenue
Phoenix, AZ 85004

V. PENALTIES

Agency acknowledges the information it receives from DHS pursuant to this Agreement is
governed by the Privacy Act, 5 U.S.C. section 552a(i)(l ), and that any person who obtains this
information under false pretenses or uses it for any purpose other than as provided for in this
Agreement, or otherwise permitted by another agreement with DHS or applicable law, may be
subject to civil or criminal penalties.

VI. INJUNCTIVE RELIEF

It is hereby agreed and acknowledged that it will be impossible to measure in money the damage
that would be suffered if the parties fai l to comply with any of the obligations herein imposed on
them and that in the event of any such failure, an aggrieved party will be irreparably damaged
and will not have an adequate remedy at law. Any such party shall, therefore, be entitled to
injunctive relief (in addition to any other remedy to which it may be entitled in law or in equity),
including specific performance, to enforce such obligations. If any action should be brought in

Page 5 of 10
 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 25 of 38

equity to enforce any of the provisions of this Agreement, none of the parties hereto shall raise
the defense that there is an adequate remedy at law.

VII. THIRD PARTY LIABILITY

Each party to this Agreement shall be sol ely responsible for its own defense against any claim or
action by third parties ari sing out of or related to the execution or performance of thi s
Agreement, whether civil or criminal, and retains responsibility for the payment of any
corresponding liability.

Nothing in this Agreement is intended, or should be construed , to create any right or benefit,
substantive or procedural, enforceable at law by any non-party to this Agreement against any
party, its agencies, officers, or employees.

VIII. DISPUTE RESOLUTION

DHS and Agency will endeavor to the best of their ability to resolve their disputes informally
and through consultation and communication. Disagreements on the interpretation of the
provisions of this Agreement that cannot be resolved between the parties should be provided in
writing to the heads of all parties for resolution. If settlement cam1ot be reached at this level, the
disagreement may be adjudicated by invoking the judicial or alternative dispute resolution
process.

IX. CONFLICTS

This Agreement constitutes the full agreement on this subj ect betvveen DHS and Agency. Any
inconsistency or conflict between or among the provisions of this Agreement will be resolved in
the following order of precedence: (1 ) this Agreement and (2) other documents incorporated by
reference in this Agreement.

X. SEVERABILITY

The Parties agree that if a binding determination is made that any term of this Agreement is
unenforceable, such unenforceability shall not affect any other provision of this Agreem ent, and
the remaining terms of this Agreement shall, unless prohibited by law, rem ain effective as if such
unenforceable provision was never contained in this Agreement.

The parties additionally agree that if this Agreement is found to be unenfo rceable as to one or
more of the parties comprising DHS, including the Department of Homeland Security, such
unenforceability shall not affect the validity of this Agreement as to the remaining parties and
thi s Agreement shall remain effective as if such party was never a party to this Agreement.

Page 6 of 10
 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 26 of 38

XI. ASSIGNMENT

Agency may not ass ign this Agreement, nor may it assign any of its rights or obligations under
this Agreement. To the greatest extent possible, this Agreement shall inure to the benefit of, and
be binding upon, any successors to DHS and Agency \·Vithout restriction.

XII. WAIVER

No 'Naiver by any party of any breach of any provision of this Agreement shall constitute a
waiver of any other breach. Failure of any party to enforce at any time, or from time to time, any
provi sion of thi s Agreement shall not be construed to be a waiver thereof.

XIII. EFFECTIVE DATE

This Agreement shall be effective immediately when both the DHS authorized officials and the
Agency authorized official have signed this Agreement. This Agreement shall continue in effect
unless modified or terminated in accordance with the provisions of this Agreement.

XIV. MODIFICATION

This Agreement is subject to periodic review by DHS, its authorized agents or designees, and, if
necessary, periodic modification or renewal, consistent with this Agreement' s terms, to assure
compliance with current law, policy, and standard operating procedures. This Agreement
constitutes the complete Agreement between the parties for its stated purpose, and no
modification or addition will be valid unless entered into by mutual consent of all parties
evidenced in writing and signed by all parties.

Any party may accomplish a unilateral administrative modification to change POC information.
A written bilateral modification (i.e., agreed to and signed by authorized officials of all parties) is
required to change any other term of this Agreement.

XV. TERMINATION
Any party may terminate its involvement in this Agreement by submitting a request in writing to
the other parties and providing 180 days' notice of intent to terminate its involvement in this
Agreement. The termination will be effective 180 days after the written termination request was
submitted or upon a date agreed upon by all parties, whichever is earlier. Termination by one
party of its involvement in this Agreement shall not terminate the Agreement as to the remaining
parties.

XVI. STATUS
The foregoing constitutes the fbll agreement on tllis subject between DHS and Agency.

Page7ofl0
 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 27 of 38

Nothing in this Agreement may be construed to (1) negate any right of action for a State, local
government, other person, or other entity affected by thi s Agreement; or (2) alter the laws of the
U nited S tates.

XVII. KNOWING AND VOLUNTARY ACKNOWLEDGMENT

The parties enter into this Agreement voluntarily, without coercion or duress, and fully
understand its terms. The parties acknowledge they had an opportunity to review and reflect on
this Agreement and have discussed its provisions with their respective counsel , if any. The
parties attest they understand the effect of each of the provisions in this Agreement and that it is
binding on all parties.

XVIII. COUNTERPARTS

This Agreement may be executed in counterparts, each of which shall be deemed to be an

original, but all of which together shall constitute one agreement.

XIX. FORMALIZATION

The undersigned represent that they are authorized to execute this Agreement on behalf of CBP,
ICE, USCIS, and Agency, respectively.

Ftuthermore, the tmdersigned execute this Agreement on behalf of CBP, ICE, USCIS, Agency,
respectively.

[Signatures on the following pages]

Page 8 of 10
 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 28 of 38

Signature for the Department of Homeland Security

DEPARTMENT OF HOMELAND SECURITY

1/8/2021
Kenneth T. Cuccinelli II Date
Senior Official Performing the Duties of the Deputy Secretary
Signed individually and collectively2

2
“Signed individually and collectively” as used here indicates that the agency is entering into this Agreement
both (1) for itself, independently, and (2) along with the other entities that comprise DHS, collectively. Should
one agency, for whatever reason, cease to be a party to this Agreement, this Agreement shall still survive for all
other parties and be read and interpreted as if the removed party had never been a party to this Agreement.
Page 9 of 10
 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 29 of 38

Signature for the Arizona Attom ey General's Office and the Arizona Department of Law

TH E ARIZONA ATTORNEY GENERAL' S O rr-ICE AND THE ARI ZONA D EPARTMENT Or LA \V

~1S~-=-=-
Mark Brnovich Date
z.~o~, 2o

Attorney General

Page 10 of 10
Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 30 of 38

Exhibit D
 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 31 of 38

M ARK BRNOVICH OFFICE OF THE AnoRNEY G ENERAL

A TTORNEY GENERAL
S TATE OF A RIZONA

January 26, 2021

Mr. David Pekoske

Acting Secretary
U.S. Department of Homeland Security
Washington, D.C. 20528
[email protected]
ogcexecsec@hq. dhs.gov
[email protected]
stephen.mccleary@hq. dhs .gov
sharmistha.das@hq .dhs.gov
VIA EMAIL AND CERTIFIED MAIL

Re: Request for DHS to comply with its agreement with the Arizona Attorney
General's Office before instituting "pause on removals"

Dear Mr. Pekoske:

I am writing to request that you comply with the Sanctuary for Americans First
Enactment (SAFE) Agreement Between the U.S. Department of Homeland Security
("DHS") and the Arizona Attorney General's Office and Arizona Department of Law
(collectively, "AZAGO"), which the parties entered into on or about January 8, 2021 (the
"Agreement"). I am enclosing a copy of the Agreement for your reference.

On January 20, 2021, you ordered a blanket halt on nearly all deportations of
removable or inadmissible aliens. 1 Specifically, your memorandum directed DHS to
impose "an immediate pause on removals of any noncitizen with a final order of removal
[subject to limited exceptions] for 100 days to go into effect as soon as practical and no
later than January 22, 2021."2 This avoidance of DHS's obligation to enforce federal
1
"Aliens" is used herein consistent with the statutory definition. See 8 U.S.C. § 110 1(a)(3).
2
Memorandum from David Pekoske, Review of and Interim Revision to Civil Immigration Enforcement
and Removal Policies and Priorities (Jan. 20, 2021 ), at p. 3, available at
https://www.dhs.gov/sites/default/files/ publications/21_0120_enforcement-memo_signed.pdf (footnote
omitted) (last visited Jan. 26, 2021 ).

2005 N oRTH C ENTRAL A vENUE, P HOENIX, A RIZONA 85004 • P HONE 602.542.4 266 • F Ax 602.542.4085 • www.AZAG.Gov
 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 32 of 38

Letter to Acting Secretary Pekoske

January 26, 2021
Page 2

immigration law-particularly to discontinue processing the removal of persons who

have been convicted of or charged with crimes-is unlawful and will seriously harm law
enforcement efforts and public safety in Arizona. 3 DHS itself has previously
acknowledged that "a decrease or pause on returns or removals of removable or
inadmissible aliens" "result[s] in direct and concrete injuries to [AZAGO], including
increasing the rate of crime .... " Agreement § II.

As the Chief Law Enforcement Officer for the State of Arizona, one of my duties
is to ensure the protection of our State's residents. The memorandum's directive to pause
deportations could lead to overcrowding at ICE facilities, forcing the release of
dangerous offenders into our State. Additionally, it has come to our attention that people
charged with or convicted of felonies have been released without coordination with the
appropriate court or probation department. I am sure you can see how this is a serious
and valid concern.

DHS agreed to consult with AZAGO before reducing immigration enforcement,

pausing removals, or declining to decrease the number of removable aliens residing in the
United States. See Agreement § § II, III.A. DHS is also obligated to provide 180 days'
written notice, consider AZAGO's input, and provide a detailed written explanation of
the reasoning behind any decision to reject AZAGO's input before taking any such
action. See Agreement § III.A.2-4.

Prior to issuing the memorandum, DHS did not contact AZAGO, much less
comply with the notice and consultation requirements of our Agreement. Moreover,
should such a directive be left unchallenged by AZAGO, DHS could attempt to renew it
indefinitely, thus allowing the current Administration to unilaterally amend the
immigration laws as applied to the vast majority of the removable or inadmissible aliens
in this country without the required congressional approval.

This letter serves as notice that AZAGO believes DHS has violated the
Agreement; it is not a comprehensive list of the AZAGO's contentions regarding legal
defects in the memorandum. See Agreement § VIII. AZAGO would like to resolve this
dispute, and we ask you to immediately rescind the memorandum as it applies to
"pausing" the removal of aliens charged or convicted of crimes in Arizona. We further
request that, consistent with the recent order entered by Judge Tipton, you provide

3
While the memorandum provides (at 4) for an exception for aliens for whom "removal is required by
law," that requires an "individualized determination" by the Acting Director of ICE following
consultation with the General Counsel, which is unlikely to encompass more than a very small group of
people. Also, while the memorandum also provides an exception (at 4 n.2) for "voluntary waiver," which
it states "encompasses noncitizens who stipulate to removal as patt of a criminal disposition," that would
not apply to aliens who refuse to stipulate to removal.
 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 33 of 38

Letter to Acting Secretary Pekoske

January 26, 2021
Page 3

AZAGO with data of "the number of individuals in custody that were subject to an Order
of Removal who have been released from custody in the United States since Friday
January 22, 2021 and the locations from which they were released."4

AZAGO believes strongly that a collaborative effort with the federal government
is necessary to ensure the safety of Arizonans. If the above concerns cannot be addressed
in a timely manner, however, we will consider all legal options, including judicial
resolution as contemplated by the Agreement. We look forward to your prompt response
in a few days. Please respond to Chief Deputy/Chief of Staff Joe Kanefield at:
Joe.Kanefield @azag.gov or 602-542-8080.

Sincerely,
...
~l
Mark Brnovich
Attorney General

Enclosure

Cc via Email and Certified Mail:

U.S. Customs and Border Protection U.S. Citizenship and Immigration Services
Office of the Commissioner Office of the Director
1300 Pennsylvania Ave. NW 5900 Capital Gateway Drive
Washington, D.C. 20536 Suitland, MD 20746
[email protected] [email protected]
[email protected] [email protected]

U.S. Immigration and Customs Enforcement

Office of the Director
500 12th Street SW
Washington, D.C. 20536
Tae.D [email protected] .gov

4
See Texas v. United States, Case No. 6:20-cv-00003 , 1/25/2021 Minute Entry.
Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 34 of 38

Exhibit E
 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 35 of 38

From: Kanefield, Joe <[email protected]>  
Sent: Monday, February 1, 2021 4:37 PM 
To: OGC <[email protected]>; OGC Exec Sec <[email protected]>; Palmer, David 
<[email protected]>; MCCLEARY, STEPHEN <[email protected]>; DAS, 
SHARMISTHA <[email protected]> 
Cc: PEREZ, ROBERT E <[email protected]>; PEREZ, ROBERT 
<[email protected]>; Renaud, Tracy L <[email protected]>; 
'[email protected]' <[email protected]>; '[email protected]' 
<[email protected]> 
Subject: DHS Arizona MOU Matter 
 
 
Dear Mr. Pekoske, 
 
I am writing on behalf of Arizona Attorney General Mark Brnovich.  General Brnovich has not received a 
response from you regarding his January 26, 2021 letter.  We would appreciate a response by COB 
tomorrow.   We are considering all legal options, including filing suit, but would prefer to hear back from 
you first. 
 
We note from the declaration recently filed by Robert Guadin in Texas v. U.S., No. 6:21‐cv‐00003 
(S.D.TX), that in the first three days following the “pause” memorandum, DHS released 27 aliens with 
final removal orders in the Phoenix area.  This is the third highest in the country, behind only Atlanta 
and San Antonio.  Please tell us in your response if any of those released in Phoenix have been convicted 
of or charged with crimes, and what steps were made to coordinate with applicable courts and parole 
departments in connection with those releases. 
 
As Attorney General Brnovich said in his letter, we believe strongly that a collaborative effort with the 
federal government is necessary to ensure the safety of Arizonans.  We look forward to your 
response.  Take care, 
 
Joe 
 
Joseph Kanefield
Chief Deputy & Chief of Staff
Attorney General Mark Brnovich
Desk: 602-542-8080
[email protected]
http://www.azag.gov
 
Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 36 of 38

Exhibit F
 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 37 of 38
Secretary

U.S. Department of Homeland Security

Washington, DC 20528

February 2, 2021

Mark Brnovich
Attorney General
State of Arizona
2005 N. Central Avenue
Phoenix, Arizona 85004

Dear Attorney General Brnovich:

I am writing in response to your letter to me of January 26, 2021 alleging that the
Department of Homeland Security (DHS) has violated a purported “Agreement” (Document)
with the State of Arizona.

The State of Texas has initiated a lawsuit against DHS seeking to enjoin, on the basis of a
substantially similar document, the Department’s lawful exercise of its authority. Texas v.
United States, No. 6:21-cv-00003, Complaint, ECF No. 1 (S.D. Tex. filed Jan. 22, 2021). The
Document between DHS and Arizona is void, not binding, and unenforceable, for the same
reasons set forth in the Defendants’ Memorandum of Points and Authorities in Opposition to
Plaintiffs’ Application for a Temporary Restraining Order, ECF No. 8 (filed Jan. 24, 2021) in
Texas v. United States.

Notwithstanding that the Document is void, not binding, and unenforceable—and

preserving all rights, authorities, remedies, and defenses under the law—this letter also provides
notice, on behalf of DHS, U.S. Customs and Border Protection (CBP), U.S. Immigration and
Customs Enforcement (ICE), and U.S. Citizenship and Immigration Services (USCIS), that
DHS, CBP, ICE and USCIS rescinds, withdraws, and terminates the Document, effective
immediately. DHS will continue to comply with applicable executive orders, statutes,
regulations, and court orders.

Please direct any further correspondence concerning the Document to the

Department of Justice.

Sincerely,

David Pekoske
Acting Secretary
 Case 2:21-cv-00186-DLR Document 1-2 Filed 02/03/21 Page 38 of 38

COPIES OF NOTICE TO:

Brian M. Boynton
Acting Assistant Attorney General
Civil Division, U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530

Department of Homeland Security

c/o Joseph B. Maher, Acting General Counsel
Washington, D.C. 20528

U.S. Customs and Border Protection

c/o Troy Miller, Senior Official Performing the Duties of the Commissioner
Office of the Commissioner
1300 Pennsylvania Ave. NW
Washington, D.C. 20229

U.S. Immigration and Customs Enforcement

c/o Tae Johnson, Acting Director
Office of the Director
500 12th Street SW
Washington, D.C. 20536

U.S. Citizenship and Immigration Services

c/o Tracy Renaud, Senior Official Performing the Duties of the Director
Office of the Director
5900 Capital Gateway Drive
Suitland, Maryland 20746