If you were stunned and disgusted by Arizona Attorney General Mark Brnovich’s unprecedented, sloppy and misleading, inaccurate, legally absurd, and historically misinformed stunt opinion on the powers of the states’ governments to “make war” on our border with Mexico, you are certainly not alone – but you may not comprehend even half of Brnovich’s perfidy and hypocrisy.

A new investigation by The Intercept proves that Brnovich has intentionally misled Arizonans to stoke fear and resentment for political gain. I will be quoting liberally from that report, but I urge everyone to read the entire report, and the analysis of DHS data on which it is founded, if you want to fully grasp just what evil genius is behind this political ploy.


The summary finding is this: in direct contradiction of the premises of Brnovich’s opinion, it is NOT Biden’s border policies that have caused a spike in illegal crossings, but overreaching and partisan judges forcing the Biden Administration to continue Trump’s draconian and inhumane policies that are causing the crisis. Analysis of DHS and Border Patrol data proves that it is the so-called “Remain in Mexico” policy that is forcing asylum seekers, who make up the vast majority of crossers, to seek illegal entry.

U.S. ports of entry have remained closed to requests for asylum throughout the pandemic, forcing some families and adults to cross the border between ports of entry to seek refuge in the United States. Unscrupulous politicians have seized upon recently increasing arrivals in Arizona to stoke fear. On February 7, 2022, the Arizona Attorney General issued an opinion claiming that the state faces an “invasion” at the southern border which, under the U.S. Constitution, would authorize the governor to use defensive force.

Far from a threat, the majority of the people arriving near Yuma are people seeking protection from Cuba, Haiti, Nicaragua, and Venezuela – countries from which many are fleeing repressive regimes and deepening political and humanitarian crises. Government data indicate that the Title 42 policy, which has been used by the Department of Homeland Security (DHS) to block asylum at ports of entry, is driving the increase in border crossings. Prior to the restrictions at ports of entry, nearly all asylum seekers… sought to enter the United States at ports of entry.

This simple chart tells the tale:

“With the onset of the coronavirus pandemic in March 2020, the Trump administration activated a public health order known as Title 42, which authorized Border Patrol agents to summarily expel undocumented migrants — including asylum-seekers — apprehended between ports of entry and all but ended asylum access at the ports. The order built upon other policies instituted under Trump, such as the Migrant Protection Protocols, better known as the “Remain in Mexico” program, which similarly forced asylum-seekers back across the border to await an immigration court hearing.” After Trump’s ploy to prevent these claimants from starting asylum and forcing them to stay in Mexico during the pendency of their case, these desperate people naturally turned to criminal networks and self-help to cross into America illegally across the deserts in hopes of starting their cases with better odds once in the country. The spike of illegal crossings which the GOP complains about, fundraises off, and scares Americans with, is a product of the draconian and inhumane policies of the Trump Administration.

The vast majority of border crossers in recent years have been these legitimate refugees fleeing violence, persecution, and repression in their home countries, as this representative sample from December of 2021 in the Yuma sector illustrates:

Contrary to the claims of Brnovich and others seeking to whip up fear and resentment, these are not economic migrants or criminals, or terrorists; these are political refugees from some of the most unstable and repressive regimes in the Americas. We should be welcoming these people in an orderly, fair, and legal process, but instead, we are forcing them into the dangerous deserts and feeding the very criminal smuggling networks that Brnovich uses as an excuse for the illegal and unconstitutional militarization of the border by Arizona’s government he seeks to justify.

As The Intercept put it: “…the fact that these individuals entered the U.S. immigration system between ports of entry, rather than at ports of entry, is key to understanding dynamics on the border right now. In 2017, according to CBP data, 99 percent of all Cubans and Haitians who encountered U.S. immigration officials on the border did so at a port of entry. In fiscal year 2022, those port encounters dropped to just 3 percent for Haitians and less than 1 percent for Cubans. The reason for the stark reversal… is that successive policies enforced by former President Donald Trump and Biden make applying for asylum at ports next to impossible for most people and make hiring a smuggler the next best option.”

This policy is not one of Biden’s choice: he has been forced to keep it in place by Republican states’ Attorney Generals, including, of course, Mark Brnovich, seeking to stay any change of policy through the courts. “The Biden administration has tried several times to end the policy that requires asylum seekers to wait outside the U.S. Each time they were rebuffed by the courts.” The cases are now pending before the Supreme Court. Many Court-watchers expect that the packed and stacked, corrupt and partisan SCOTUS will continue to thwart Biden’s ability to change immigration policy regarding asylum seekers, further extending and cementing the problems caused by Trump on the border. In short, the cause of the very border issues Brnovich and the GOP complain of are the very Trump policies they seek to sustain in court against the wishes of the duly elected President.

The Intercept concludes: “In other words, it is not, as Brnovich and other Republicans on the campaign trail argue, the absence of Trump-era policies that is fueling a humanitarian crisis and lining the pockets of organized crime — it is their continuation.

The formal catalyst for Brnovich’s decision to outline a legal pathway to an Arizona border war was a request for a legal opinion that Republican state (Ed.: and fake Trump elector…) Rep. Jake Hoffman sent in October. Drawing on the 2001 Authorization for the Use of Military Force that began the war on terror and a definition of invasion that he pulled from the Merriam-Webster dictionary, Hoffman described his “firm belief” that the Biden administration, with the “assistance of the Mexican drug cartels,” is overseeing a “coordinated crisis” on the U.S.-Mexico border.

Hoffman’s request stemmed from a behind-the-scenes effort spearheaded by Ken Cuccinelli, a former acting deputy secretary at the Department of Homeland Security under Trump. Cuccinelli is now a fellow at the Center for Renewing America, one of several right-wing think tanks in Washington, D.C., devoted to continuing the Trump legacy whether or not Trump is in office. As investigative journalist Melissa del Bosque documented last week, Cuccinelli has for more than a decade been pushing the idea that conditions on the border qualify as an invasion and that border states have the authority to respond to that invasion with military force. Cuccinelli told former White House adviser Steve Bannon in an interview last month that he has spent the past two years working to convince Ducey, as well as Texas Gov. Greg Abbott, of his idea.

This is all part and parcel of the GOP’s long con on the American people to create a border crisis which they then used as an excuse for further militarization of the border, and now are suing to force Biden to continue while at the same time blaming Biden for the result of the policies they are keeping frozen with the GOP-dominated courts. A pretty sweet swindle, if you don’t put the pieces together to reveal their hypocritical and evil use of innocent refugees to both whip up their base and lash out at Biden.