Attorney General Mark Brnovich is trying a new legal theory to combat Biden administration border policies: a claim the president wants to encourage illegal migration to grow the U.S. population. And what makes that illegal, Brnovich says, is the failure of the president to consider the impact of those migrants on Arizona.
That new claim, like prior efforts, centers around both the administration’s decision to cease border wall construction and to end the “remain in Mexico’’ policy of dealing with those seeking asylum. That latter determination was affirmed earlier this year when the U.S. Supreme Court said that was within the power of the administration.
But Brnovich is now going after those decisions with a new hypothesis: the president and the Department of Homeland Security never considered the environmental impacts of those actions. And that, he said, includes population growth.
Brnovich said the administration knew its programs would cause a surge in migration “and only sought to manage the pace of the swell.’’
He cited comments last year by Homeland Security Secretary Alejandro Mayorkas telling would-be migrants, “We are not saying, ‘Don’t come,’ ‘’ saying instead “We are saying, ‘Don’t come now.’ ‘’
“In effect, the Secretary Mayorkas inadvertently said the quiet part loudly: Defendants do not wish to avoid radically increased immigration; they merely wish to manage the swiftness if the increase,’’ Brnovich said.
It’s all part of what the attorney general claims are “population augmentation policies’’ of the Biden administration. And he said it consists of multiple elements.
For example, he cited Title 42. That was the Trump-era policy that allowed the government to exclude migrants without travel documents due to health risks of COVID.
Brnovich said the Biden administration decided to exempt 250 migrants each day from the policy.
He also said federal agencies are detaining fewer migrants than ever, “including migrants with serious felony convictions.’’
And then there was the decision by Biden, newly sworn into office, to halt border wall construction.
Lanza has set no date for a hearing.
The new legal filing comes months after U.S. District Court Judge Dominic Lanza tossed out a bid by the attorney general to immediately force the Biden administration to resume construction of that border wall.
Lanza said there is no legal basis to Brnovich’s claim that the decision to halt construction first required the federal government to conduct a study to determine the environmental impact of the change in policy. The judge said such challenges cannot be brought under the National Environmental Policy Act.
And in a sometimes sharply worded 32-page ruling, Lanza said the arguments by Brnovich linking border wall construction and illegal immigration are both legally and factually flawed. He said the attorney general failed to show any actual link between the issues.
Brnovich initially sought review of that ruling by the 9th Circuit Court of Appeals. But he dropped that claim earlier this month, telling the appellate judges he instead will try to make the case to Lanza with “new evidence,’’ resulting in the new claim.