The Biden Homeland Security Department has concluded that at least eight agreements signed by the Trump administration giving states a stake in federal immigration enforcement are “void, not binding and unenforceable,” and is moving to cancel them as quickly as possible, according to a memo seen by The Washington Times.
The Jan. 29 document from Joseph B. Maher, acting general counsel at the department, also said the cancellations could help fight a lawsuit that has halted President Biden’s deportation pause.
“Signing and sending letters to the countersigning jurisdictions prior to the deadline for DHS’s brief [in the court case] will allow DHS to refer to those letters in its briefing should DOJ wish to rely on them in connection with its defense strategy,” Mr. Maher wrote.
David Pekoske, who was acting secretary at the time of the memo, approved the document Tuesday.
The agreements with the jurisdictions have become a major headache for the Biden team. Texas cited its agreement as part of its lawsuit to stop Mr. Biden’s 100-day deportation pause, announced on Inauguration Day.
A federal judge in Texas issued a temporary restraining order blocking the pause, though it cited reasons other than the agreement.
Still, Mr. Maher argued the Biden team’s position could be “bolstered” if it could erase the agreements. It also would put the other jurisdictions on notice that Homeland Security won’t honor their agreements, the lawyer said.
Then-acting Deputy Secretary Ken Cuccinelli signed the deals in the final week of the Trump administration.
In addition to Texas, the eight states the Biden team said it knows signed deals are Alabama, Arizona, Indiana, Louisiana, Montana, South Carolina and West Virginia. Mr. Cuccinelli also signed a deal with the sheriff of Rockingham County in North Carolina.
A letter revoking the Arizona agreement went out last week. The Washington Times also has seen a signed letter from Homeland Security revoking the Indiana agreement, though a spokesperson for the attorney general in that state said this weekend they have not received any revocation.
Homeland Security didn’t provide comment, and it’s unclear which other revocation letters have been sent.
The agreement with Texas gave the state 180 days’ notice before Homeland Security would make any decision that “could reduce immigration enforcement, increase the number of removable or inadmissible aliens in the United States, or increase immigration benefits or eligibility for benefits for removable or inadmissible aliens.”
Texas could use the 180 days to consult and offer comments.
Mr. Cuccinelli told The Washington Times the agreements were intended to act as a force multiplier, cementing cooperation between Homeland Security and jurisdictions eager to share in the department’s missions.
He compared it to former President Donald Trump’s move to give states and localities a formal say in whether refugees get resettled in their jurisdictions — something he said the law always envisioned, but that the previous president made explicit. Mr. Biden revoked that policy this week.
Mr. Cuccinelli said trying to cancel the new 180-day notice deals made no sense if the goal is to enforce the laws better.
“Why would anybody not want to be cooperating with states and localities?” he said. “The current administration appears to want to be inefficient and unsuccessful at immigration law enforcement. That’s a goal on their part.”
Mr. Cuccinelli, a former attorney general of Virginia, also disputed the Homeland Security lawyer’s claim that the agreements were void and not binding on their face.
“I wouldn’t have signed it if I thought they weren’t legal,” he said.
The memo and letters seen by The Times were all signed by Mr. Pekoske, apparently just hours before a new secretary, Alejandro Mayorkas, was confirmed by the Senate and sworn in.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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