- The Washington Times - Friday, February 5, 2021

The Biden Homeland Security Department has concluded that eight agreements signed by the Trump administration giving states and localities 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, said the cancelations could also be used in a lawsuit to help revive President Biden’s deportation pause.

“Signing and sending letters to the countersigning jurisdictions prior to the deadline for DHS’s brief … 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 Mr. Maher’s strategy on Tuesday, according to the document.

The agreements with the jurisdictions have become a major headache for the new 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 Biden 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 would also 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.

The eight agreements the Biden team said it’s aware of are with Alabama, Arizona, Indiana, Louisiana, Montana, South Carolina, West Virginia and the sheriff of Rockingham County in North Carolina.

A letter revoking the Arizona agreement went out this week. The Times has also seen a signed letter from Homeland Security revoking the Indiana agreement, though it’s not clear whether that one has 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 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. President 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.

Homeland Security didn’t respond to a request for comment on the memo or the revocation letters that have been sent.

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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