Dear Mr. Pekoske:
Yesterday you ordered a blanket halt on nearly all deportations of illegal aliens. This complete abdication of the Department of Homeland Security’s (“DHS”) obligation to enforce federal immigration law is unlawful and will seriously and irreparably harm the State of Texas and its citizens.
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.”1 Should such a directive be legal or left unchallenged, DHS could attempt to renew that directive indefinitely or issue a similar directive for an even longer period of time. That would allow the Biden Administration to grant blanket amnesty to the vast majority of the illegal aliens in this country with the stroke of a pen and without congressional approval.
Border states like Texas pay a particularly high price when the federal government fails to faithfully execute our country’s immigration laws. Your attempted halt on almost all deportations would increase the cost to Texas caused by illegal immigration. DHS itself has previously acknowledged that such a “pause on . . . removals” will cause “concrete injuries to Texas.” See Agreement between Department of Homeland Security and the State of Texas (“Agreement”) § 2.
As a result of that particularized interest in the effective operation of our immigration system, Texas has agreed to cooperate with the federal government in its execution of immigration enforcement. See Agreement. Your attempt to halt deportations violates our Agreement in multiple ways.
First, DHS is obligated to consult with Texas before reducing immigration enforcement, pausing removals, or declining to decrease the number of removable aliens residing in the United States. See Agreement §§ 2, 3.A. Prior to issuing yesterday’s memorandum, however, DHS did not contact Texas at all, much less comply with the notice and consultation requirements of our Agreement. SeeAgreement § 3.A.2–3.
Second, DHS agreed “to prioritize the protection of the United States and its existing communities,” including by “promot[ing] the return or removal from the United States of inadmissible and removable aliens.” Agreement § 3.A.1. Needless to say, a broad “pause” on the removal of illegal aliens does not “promote . . . removal.”
This letter serves as notice that Texas believes DHS has violated the Agreement; it is not a comprehensive list of the many legal defects in your memorandum. See Agreement § 8. Texas would like to resolve this dispute, but you must immediately rescind the January 20 Memorandum. DHS’s failure to provide Texas with pre- implementation notice of the memorandum—combined with its quick implementation of the memorandum—makes waiting impracticable. We require an immediate response or we will seek relief to enjoin your order, as contemplated by the Agreement. Agreement § 6.
Attorney General of Texas
Read a copy of the letter here.