UPDATE: Texas Sues Over 100-Day Deportation Moratorium

Texas filed a lawsuit on January 22, 2021, challenging the President Biden’s 100-day moratorium on deportations. As noted in a prior post, President Biden ordered a review of current enforcement priorities and the establishment of revised priorities. The Department of Homeland Security (DHS) has since paused almost all deportations for at least 100 days, until it develops final enforcement priorities.

Texas argues the moratorium violates the U.S. Constitution, federal and state law, and the terms of an agreement it recently signed with DHS on December 31, 2020, in the final days of the Trump Administration.

In December 2020 and January 2021, DHS signed agreements with multiple states, including Arizona, Indiana, South Carolina, Alabama, and Texas.  Under these agreements, DHS agreed to provide advance notice to these states of immigration policy changes and allow six months for review and comment before moving forward with those changes.

The legality of these agreements, however, is in question.  It is uncertain whether such agreements are authorized by statute and whether the acting DHS official who signed these agreements, Ken Cuccinelli, had the authority to do so.  Prior to these agreements, the Government Accountability Office (GAO) found neither Mr. Cuccinelli nor Acting Secretary of Homeland Security Chad Wolf were lawfully in those positions.

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