Arizona AG clears hurdle in border policy lawsuit

PHOENIX — Arizona has won a significant legal victory in its battle over federal immigration policies.

U.S. District Court Judge Michael Liburdi has given state Attorney General Mark Brnovich permission to pursue his claims that the Biden administration acted illegally when it enacted policies that have allowed hundreds of thousands of undocumented individuals to be released in this country. Those policies, Brnovich contends, have abdicated the federal government’s responsibility.

Liburdi, in his 27-page ruling, rejected efforts by the administration to dismiss the case as beyond the purview of the court. He said judges have the ability to determine whether policies comport with federal law.

The ruling does not guarantee that the state will win the lawsuit seeking to void the policies. That will come after a trial where Brnovich will need to prove his legal claims.

But the attorney general, who has waged war with the administration on multiple fronts, already has cleared a significant legal hurdle.

Liburdi said that, despite claims to the contrary by federal lawyers, Brnovich has standing to challenge the policies. That’s because there is reason to believe the state has been financially damaged by presence of all the people that the attorney general contends should have been either detained or deported as he says the law requires.

Central to the court fight are laws dealing with what is supposed to happen to anyone who arrives in the United States or is present but “has not been admitted.”

Aside from some who are initially determined to be inadmissible due to various reasons, like fraud, the law generally requires that they “shall be detained” for a removal proceeding unless an immigration officer decides they are “clearly and beyond a doubt entitled to be admitted.” Those arriving by land can be returned to the border country from which they came as an alternative to being detained.

The law also says that applicants for admission may be released on parole “only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.”

What makes all that relevant to the lawsuit is the claim by Brnovich that the Biden administration, rather than acting selectively, released more than 225,000 undocumented individuals into the country between the time he took office and when he filed his latest version of his complaint a year ago.

Brnovich said these individuals were served not with a “notice to appear,” a legally recognized document that initiates removal proceedings.

Instead, they were service with a “notice to report,” something the attorney general says does not exist in immigration laws. And he contends about 80% of those served with those latter documents do not show up.

“The Biden administration is thus giving tens of thousands of aliens per month, in essence, license to disappear into the interior of the United States,” Brnovich said.

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In seeking to have the case dismissed, the Department of Justice claimed the Brnovich and the state have no legal standing because they “cannot demonstrate any actual or imminent injury caused by the challenged policies.”

Liburdi, however, said there is evidence to the contrary. He cited just the area of medical services provided to those not in the country legally.

“Federal law requires Arizona to provide emergency medical services to all individuals regardless of their immigration status,” the judge said. “Consistent with that requirement, Arizona delivers millions of dollars in medical services to unlawfully present noncitizens each year.”

What Brnovich is arguing that the refusal of federal immigration officials to detain or remove migrants, coupled with their expansive use of the parole authority, increases the number of undocumented individuals in Arizona. And what that means, he told the judge, is the administration’s lax immigration policies have increased — and will continue to increase — the state’s healthcare costs.

“This argument comports with common sense,” Liburdi said.

“If plaintiffs are right that defendants’ detention and parole policies are inconsistent with federal statutes, and the government should accordingly detain noncitizens rather than release them into the United States’ interior, then those policies injure Arizona because they lead to releasing more undocumented aliens into the state than if defendants followed the law,” Liburdi said.

Liburdi cited data provided by the state from the Yuma Regional Medical Center which provided care to more than 100 noncitizens in United States Immigration and Customs Enforcement custody during February, March and April of 2021, the three months after the administration changed its policies. Brnovich said that in February 2020 alone, the cost to provide care to noncitizens was $591,602, more than double the average monthly cost of care for the preceding nine months. And he said these costs are neither fully reimbursable from the federal government or the patients themselves, which means the balance is borne, in large part, by Arizonans.

“Plaintiffs have met their burden to show they have suffered a concrete and particularized injury,” Liburdi concluded, citing the increased cost of medical services.

The judge also said that the lawsuit meets the second part of the test — that the claimed damages are both traceable to the conduct of the administration and that the injury can be redressed with a court order to the government to follow the law.

“In short, if defendants were detain or remove, rather than release, more undocumented noncitizens, Arizona’s medical costs would be lower,” Liburdi said.

He also brushed aside arguments by the federal government that the whole issue is legally moot because it no longer uses “notices to report.” Liburdi noted the attorneys never represented they cannot simply reinstate the program.

No date has been set for a trial.