Federal judge halts preparations for end of US asylum limit

NEW ORLEANS (AP) — A federal judge ordered a two-week halt Wednesday on the phasing out of pandemic-related restrictions on seeking asylum — and raised doubts about the Biden administration’s plan to fully lift those restrictions on May 23. For now, the decision is only a temporary setback for the administration. But the judge staked out a position that is highly sympathetic with Louisiana, Arizona and 19 other states that sued to preserve so-called Title 42 authority, which denies migrants a chance at asylum on grounds of preventing the spread of COVID-19. “(The states) have established a substantial threat of immediate and irreparable injury resulting from the early implementation of Title 42, including unrecoverable costs on healthcare, law enforcement, detention, education, and other services for migrants,” wrote U.S. District Judge Robert Summerhays in Lafayette, Louisiana. Summerhays, who was appointed by former President Donald Trump, said states were likely to succeed with their argument that the administration failed to adhere to federal procedures when it announced April 1 that it was ending Title 42 authority. The judge has scheduled a critical hearing on May 13 in Lafayette to hear arguments on whether to block Title 42 from ending as planned 10 days later. Texas filed a similar lawsuit filed Friday in federal court in Victoria, Texas. The decision to end Title 42 authority was made by the federal Centers for Disease Control and Prevention. It has come under growing criticism from elected officials in Biden’s Democratic Party who contend the administration is unprepared for an anticipated increase in asylum-seekers. The Justice Department declined to comment on the order but the administration has said it will comply, while contending it will hamper preparations for Title 42 to end on May 23. About 14% of single adults from Guatemala, Honduras and El Salvador were processed under immigration laws during a seven-day period ending last Thursday. That’s up from only 5% in March, according to government figures. Summerhays’ order requires the Homeland Security Department to “return to policies and practices in place” before it announced plans to end Title 42 and to submit weekly reports that demonstrate it is acting “in good faith.” Migrants have been expelled more than 1.8 million times under the rule invoked in March 2020 by the Trump administration. Migrants were stopped more than 221,000 times at the Mexico border in March, a 22-year-high that has raised concerns about the government’s ability to handle even larger numbers when Title 42 is lifted. Advocates for asylum-seekers say the restrictions endanger people fleeing persecution back home and violates rights to seek protection under U.S. law and international treaty. As the CDC acknowledged, the public health justification for the order has weakened as the threat of COVID-19 has waned. At two often-contentious hearings Wednesday, Department of Homeland Security Secretary Alejandro Mayorkas sought to defend the administration’s handling of an increase of migrants at the Southwest border and its plans to deal with the prospect of more with the potential end of Title 42. Mayorkas sought to push back on Republican accusations that the Biden administration has encouraged irregular migration by allowing some people to seek asylum, blaming economic and political turmoil and violence throughout Latin America and the world. “Some of the causes of irregular migration have only been heightened by years of distress preceding this administration,” he said. Mayorkas testified one day after Homeland Security released a plan with more details about how it was preparing for the end of Title 42 authority. Visit us for more information at: http://www.beverlyhillsimmigrationlaw.com/index.html

Dems may get reprieve from internal tension over immigration

A federal judge could break a standstill in the Senate while also defusing a brutal immigration conflict between Democrats and President Joe Biden. The administration’s plan to lift Trump-era immigration curbs instituted during the pandemic, colloquially called Title 42, is roiling the Democratic Party as candidates and incumbents alike dash away from Biden’s position. Republicans and some Democrats are beginning to insist on a vote to delay the easing of the immigration limits, even as progressives and some immigration reform advocates stand with the administration’s policy — if not its politics. Republicans use immigration “as their weapon, the third rail of politics. And that has, in an election cycle, created some concerns from some Democrats who I think normally would have a different view,” said Sen. Robert Menendez (D-N.J.). Yet a court ruling late Monday could give Biden some breathing room, as a federal judge signaled plans to temporarily block the administration’s decision to end the pandemic-era border restrictions. Without that decision, border politics threaten to rend the Democratic Party as well as freeze a $10 billion bipartisan coronavirus aid deal that Republicans insisted should include at least an up-or-down vote on keeping Title 42. What’s more, Biden will soon ask Congress to deliver more money for Ukraine’s defense against a Russian invasion. That bill, unless Title 42 were preserved by other means like a court order, could be another opportunity for immigration politics to seep into the Senate’s work. Senate Minority Leader Mitch McConnell turned the lens on Democrats on Monday when asked whether he would insist on a vote to delay the immigration policy change. “There seems to be a lot of Democratic senators wanting to express themselves on that,” he observed. And just a few hours later, Sen. Jon Tester (D-Mont.) said he wants the administration to take a look at bipartisan legislation he’s co-sponsoring with Sen. James Lankford (R-Okla.) that would delay any end to Title 42 without a detailed plan. Sen. Catherine Cortez Masto (D-Nev.) said in an interview on Monday, “I’m pretty clear: I didn’t support Title 42 in the beginning, I don’t support repealing it now until there’s a plan to address the surge [in migration] and address the broken immigration system. Which nobody wants to do.” She is not yet advocating for Tester’s bill but is increasingly raising alarm at the Biden administration’s move. In 2014, President Barack Obama’s moves to ease immigration limits similarly jolted his party and sent some centrist Democrats running away from the administration. Since then, the courts have grown only more conservative — sometimes heading off tough intraparty Democratic conflicts during Biden’s presidency. Another contentious Biden administration Covid policy, the mandatory mask mandate on public transportation and airplanes, also got blocked by the federal courts with few Democrats publicly leaning on the administration to fight the ruling. Eight Democratic senators have voted to overturn that mask rule, suggesting that its popularity among Democratic lawmakers facing tough races had fully run its course and there was little political will to keep it. Title 42 has been even more explosive, with relatively few Democrats defending Biden and candidates of all stripes calling for a delay, more details and a plan from the administration. Sen. Mitt Romney (R-Utah), who wrote the bipartisan Covid deal with Majority Leader Chuck Schumer, said that the courts are the “800-pound gorilla” on these issues: “And they may have something to say on this.” But border-state Sen. Mark Kelly (D-Ariz.) signaled that even a delay from the courts won’t fully eliminate the tension between Biden and members of his own party over Title 42. “I’d like to see a plan from the administration,” Kelly said. “The courts are separate from what we do here. It doesn’t change my requirement that I want to see them have a plan that’s workable.” Prior to the court ruling, officials planned to roll out more details early this week on how they would handle the surge in migration that’s considered likely at the southern border should Title 42 end. That was intended to alleviate some Democratic concerns over how the administration has talked about the change, with caucus members constantly asking the administration for a better plan and better public messaging. “One of the reasons it’s divided us is that the communication from the administration has not been clear,” said Sen. Tim Kaine (D-Va.). “We haven’t gotten our questions answered. So that puts people in some different positions.” Despite the court ruling, senators in both parties suggested Monday that a floor vote on the policy may be inevitable, even if the vehicle to do so may not be the popular Ukraine aid or the bipartisan Covid package. In a sign that the issue is not going away, Title 42 came up during Monday night’s GOP leadership meeting, according to an attendee who spoke candidly on condition of anonymity and suggested Republicans are “committed” to bringing it up. “We need a vote on that. This is really serious,” said Sen. Susan Collins (R-Maine). “I do believe if we got a clean vote on it, there would be strong support for keeping Title 42.” Some Senate Democrats are betting that the court ruling could give Biden and Schumer a time cushion before they have to address Title 42 head-on. Until then, the issue is “a tough one, a very tough one,” said Senate Judiciary Chair Dick Durbin (D-Ill.). Visit us for more information at: http://www.beverlyhillsimmigrationlaw.com/index.html

The GOP's latest immigration weapon: The courts

Hi, hi, Recast fam! Sabrina is back as our guest host filling in for Brakkton today. Vice President Kamala Harris has tested positive for Covid-19, Elon Musk has reached a deal to buy Twitter and the world health community is at odds over how to handle the next phase of the pandemic battle. But today, we’re starting off talking about the courts and immigration. President Joe Biden promised on the campaign trail that, if elected, he would end the Trump-era “Remain in Mexico” policy. On Biden’s first day in office, the administration announced it was effectively suspending the program, which forced thousands of migrants to wait in Mexico for their asylum cases to be processed. Then they got sued by Republican-led Texas and Missouri. Fast forward 15 months, and the “Remain in Mexico” policy — known officially as Migrant Protection Protocols — is still around. Why? The U.S. courts. The Supreme Court today heard arguments in Biden v. Texas, a case that could determine whether the Biden administration must keep the controversial Trump-era policy in place or can rescind it — as it has already tried to do twice. The case is part of a larger pattern of Republican-led states looking to the courts — namely in districts with Trump-appointed judges — to shoot down Biden’s immigration policy. “This has become a way for Republicans to challenge and tear apart any administration policy on immigration that they don’t like, which is most of them,” said David Leopold, former president of the American Immigration Lawyers Association. “They’ve been very successful at stalling the president’s agenda on immigration.” The case before the Supreme Court today has gone back and forth between the courts since U.S. District Court Judge Matthew Kacsmaryk, a Texas-based appointee of former President Donald Trump, ruled in August that the policy had to be reinstated. In December, the Biden administration announced it would restart the program, which human rights activists and advocates have long argued puts migrants at risk of violence in Mexican border towns. Immigration lawyers, immigrant advocates and U.S. officials say the stakes go beyond the “Remain in Mexico” policy and could have major ramifications on Biden’s (and future presidents’) ability to undo a former president’s policies and enact new ones. The judiciary “has become a weapon of Republicans to not only stop policy but in the instance of Biden v. Texas, they’re trying to create the Remain in Mexico policy again via the judiciary and that’s just not their job,” said Alida Garcia, former senior migration adviser in the Biden White House and longtime immigrant advocate. Garcia explained that the case goes beyond immigration, as it puts into question whether a sitting president has the ability to make foreign policy decisions — or if an appointed federal district court judge can mandate what the U.S. government does in another country, given that restarting MPP required negotiations with the Mexican government. The practice of GOP-led states looking to the judiciary to block Democrats’ immigration policies is not entirely new, immigration lawyers and advocates say. In 2014, Texas was joined by 25 other states in suing to block the Obama administration from implementing the Deferred Action for Parents of Americans program, which would have offered legal status to parents of U.S. citizens and lawful permanent residents. It was ultimately blocked in the courts. Texas has led the charge against Biden’s immigration policies. Last week, Texas Attorney General Ken Paxton challenged the Biden administration’s plans to lift the pandemic restriction on the U.S. southern border, known as Title 42. Paxton’s office, in a statement, noted the Title 42 lawsuit is “his 10th border crisis lawsuit against the Biden Administration — and the 26th overall against his lawless administration.” On Monday, in a separate case from Paxton’s latest lawsuit, a Trump-appointed federal judge in Louisiana, U.S. District Judge Robert Summerhays, announced his intent to temporarily block the Biden administration from lifting Title 42, the public health order invoked by Trump in March 2020 that allows border agents to quickly kick out migrants without letting them seek asylum. For weeks, Republicans and a growing number of Democrats have criticized the Biden administration for its plan to lift Title 42 on May 23. But Garcia and other immigrant advocates say all the talk of Title 42 distracts from a real need for Congress to step up and pass new immigration laws. Congress has failed to pass immigration reform for decades. “We really need some adults in the room to have an honest conversation and not a political conversation about a very complex policy problem,” Garcia said. The next court hearing on Title 42 is May 13. And a ruling on the MPP case in the Supreme Court isn’t expected until late spring or early summer. We’ll be keeping an eye on any developments in the coming weeks and months. Stay tuned. Visit us for more information at: http://www.beverlyhillsimmigrationlaw.com/index.html

Judge Says Migrants Must Still Be Denied Entry for Health Reasons

Under a public health rule known as Title 42, thousands of migrants have been expelled at the border. A federal judge is halting efforts to begin lifting the policy, due to end on May 23. A federal judge on Monday said he would block the Biden administration from exempting migrants from expulsion under a Trump-era public health order until the policy is officially lifted next month. The federal government has announced plans to lift the order, known as Title 42, on May 23 — a move that is expected to create a considerable surge of migration from Mexico. Several states have challenged the plan, saying it will create chaos on the border and lead to significant impacts on states forced to handle the newly arriving migrants. Judge Robert R. Summerhays of the United States District Court for the Western District of Louisiana did not yet rule on the issue of whether Title 42, adopted early in the coronavirus pandemic, should be kept in place. But he said he would in the meantime grant a request from the states of Missouri, Louisiana and Arizona to prevent the federal government from taking any early steps to disregard Title 42 for certain migrants and process them under normal immigration procedures. In their lawsuit, the states said there were indications that many migrants from Guatemala, Honduras and El Salvador already are not being subjected to Title 42 expulsions, more than a month before the scheduled lifting of the order. “Thus, while Title 42 may be ‘technically still in place,’ the reality on the ground is that D.H.S. ‘has largely stopped using Title 42 to remove migrants from Northern Triangle countries,” the states’ motion said, quoting a report from Fox News. The Department of Homeland Security acknowledged in its response to the motion that it had begun processing some migrants from Central America — about 14 percent during a recent one-week stretch — under prepandemic guidelines. However, the agency said, the migrants were not necessarily being allowed to remain in the country, but were being placed in expedited removal proceedings, which make it more difficult to re-enter the country later. In the states’ proposed order, which Judge Summerhays said he would sign, the states called for a halt to any action that “formally implements” the termination of Title 42 or which has “substantially similar effect.” Judge Summerhays, an appointee of President Donald J. Trump, whose administration initially adopted the public health order, also ordered the government to certify under oath that agencies had not taken any actions over the past month that could be “reasonably characterized” as carrying out the termination order ahead of May 23. The public health policy was initially adopted in 2020 to slow the spread of Covid-19. Its effect has been to substantially reduce the number of undocumented migrants allowed to enter the United States, a key goal of Mr. Trump’s immigration policies. President Biden, who came to office vowing a more humane border policy, has nonetheless been scrambling to plan for the expected impact of lifting the public health order. Some predictions have suggested that about 12,000 to 13,000 migrants a day could cross the southern border once the policy is no longer in place. The administration has been preparing for up to 18,000 daily border crossings — a huge increase over the current rate of about 8,000 a day. The motion filed by the three states calls for requiring the Department of Homeland Security to halt any processing of migrants from El Salvador, Guatemala and Honduras in the manner done before the public health measure, which essentially allowed many migrants to enter the United States and file asylum claims. The temporary restraining order will end in 14 days, it said, unless the court takes action to dissolve or extend it before its expiration. The three states filed a lawsuit on April 3, two days after the federal Centers for Disease Control and Prevention issued its order directing an end to the policy in May. On Friday, they asked that the court issue a temporary restraining order to halt any early winding down of Title 42, saying it appeared that the federal government was “partially implementing the termination order already,” well ahead of May 23. Judge Summerhays announced his intention to grant the motion during a virtual status conference on the case. Since its introduction in March 2020, Title 42 has been invoked by officers along the southern border to expel migrants more than 1.8 million times — to Mexico or their home countries, including on flights — without allowing them to request asylum. A number of Republican lawmakers, as well as an increasing number of Democrats, had been critical of the plan to eliminate the measure because of the predictions of chaos that would ensue along the border. At the same time, progressive Democrats had pressured the Biden administration to scrap the policy, which they said was no longer justified for health reasons and was instead being used to limit immigration. Swelling numbers of migrant encounters by the U.S. Border Patrol gave Republicans ammunition to attack the administration for failing to control unauthorized migration, even with the order in place. The Texas attorney general, Ken Paxton, on Friday filed a lawsuit against terminating Title 42, describing it as “the only” rule holding back a “devastating flood of illegal immigration.” Authorities encountered more than 221,000 migrants last month, the largest number in at least two decades. In March, officials turned people away under Title 42 half of the time. The public health order has always been used inconsistently, with the government allowing migrants in under humanitarian exemptions and other reasons. Along many stretches of the border, Mexican authorities on the other side refused to accept the return of migrants with young children and from far-flung countries, such as Brazil, Cuba and India. Human rights advocates say that Mr. Biden’s administration has used the public health measure to limit immigration. “We have said from the start that it was never justified, and we applauded the C.D.C. decision to lift the order,” said Robyn Barnard, senior advocacy counsel for Human Rights First. “It is clear from these lawsuits and attempts in Congress to keep Title 42 in place that all pretexts that this was a public health measure were just that.” Recent polling has suggested that lifting Title 42 was regarded unfavorably by a majority of voters, and the president’s party already faces headwinds going into the midterm elections. The White House has said that Title 42 was a public health provision and that a determination to lift it was made by the C.D.C., compelling the government to prepare to handle an increase in the volume of migrants crossing the border. Vedant Patel, a White House spokesman, referred a request for comment on the filing and questions of whether the administration would appeal to the Justice Department. In a tweet, Missouri’s attorney general, Eric Schmitt, wrote, “Our Office just obtained a temporary restraining order to keep Title 42 in place. This is a huge victory for border security, but the fight continues on.” Visit us for more information at: http://www.beverlyhillsimmigrationlaw.com/index.html

The enormous stakes in the Supreme Court’s “Remain in Mexico” case, explained

Elections have consequences. Or at least, they are supposed to. When the American people voted to replace former President Donald Trump with now-President Joe Biden, that should have meant that many of Trump’s policies — including policies governing the US-Mexico border — could be abandoned and replaced by policies supported by Democrats. That is, after all, how democratic republics work. But, nearly a year and a half into Biden’s presidency, a Trump immigration policy known as “Remain in Mexico” is still in effect. It’s in effect despite the fact that the Biden administration has twice taken the legal steps necessary to rescind it — or at least, the steps that were necessary before one of Trump’s judges got involved. The fate of this Remain in Mexico policy is now before the Supreme Court in Biden v. Texas, a case that the Court will hear on Tuesday, April 26. “Remain in Mexico” is the colloquial name for Trump’s Migrant Protection Protocols, which require many immigrants who seek asylum in the United States to stay in Mexico while they wait for a hearing. The Biden administration first announced that it was suspending this program in a June 1, 2021 memo from Secretary of Homeland Security Alejandro Mayorkas. Mayorkas’s June memo argued that Remain in Mexico drained limited border security resources, required diplomatic negotiations with Mexican officials that “draws away from other elements that necessarily must be more central to the bilateral relationship,” and forced many migrants to live in squalid conditions without “stable access to housing, income, and safety.” That should have been the end of the policy, for at least as long as Biden is president. But then Judge Matthew Kacsmaryk decided to overrule Biden. Kacsmaryk is a Trump judge and former lawyer for a Christian conservative law firm. Before his elevation to the bench, he labeled being transgender a “mental disorder,” claimed that gay people are “disordered,” and denounced what he called a “sexual revolution.” In August of 2021, he ordered the Biden administration to reinstate Remain in Mexico. Kacsmaryk’s opinion rested on the improbable claim that a 1996 immigration law required the federal government to implement an even stricter version of Remain in Mexico than the one that was in effect under Trump — meaning that, if Kacsmaryk is correct, every president since Bill Clinton violated the law, and somehow no one noticed until 2021. Because Remain in Mexico can only be implemented with the Mexican government’s cooperation, Kacsmaryk’s decision also violated a long line of Supreme Court decisions warning about “the danger of unwarranted judicial interference in the conduct of foreign policy.” Nevertheless, a week after Kacsmaryk’s decision, the Supreme Court rejected the Biden administration request to block it — over the dissent of the GOP-controlled Court’s three Democrats. The Supreme Court’s order, however, was narrow. It did not weigh in on Kacsmaryk’s creative reading of federal immigration law, and instead faulted Mayorkas for not adequately explaining why the Biden administration chose to end Trump’s policy. Since then, two significant things have happened. One is that Mayorkas issued a second memo in October, which offers a fuller explanation of the administration’s decision to end Remain in Mexico (the June memo was just seven pages; the new memo is 39 pages). The second is that a Republican panel of appeals court judges embraced Kacsmaryk’s reading of federal immigration law, and effectively declared Mayorkas’s October memo a nullity. And so it’s now up to the Supreme Court to untangle this mess, and the stakes are enormous. Biden v. Texas will not simply determine whether the Remain in Mexico program can end. It could also allow Trump’s judges to entrench one of Trump’s policies — even when the American people voted to reject Trump. Kacsmaryk’s reading of federal immigration law is egregiously wrong The crux of Kacsmaryk’s opinion is that federal immigration law only gives “the government two options vis-à-vis aliens seeking asylum: 1) mandatory detention; or 2) return to a contiguous territory.” That is, when a person arrives at the Mexican border seeking asylum, the government must either lock that person up, or require them to stay in Mexico until their asylum case is resolved. Under this incorrect reading of immigration law, no president — including Donald Trump — has ever had a border policy that complies with the 1996 law. Trump’s version of the Remain in Mexico policy exempted non-Spanish speakers. But Kacsmaryk’s reading of federal law would not permit such exceptions. Many problems with Kacsmaryk’s opinion should be obvious to anyone who has actually read the relevant statutes. Federal law explicitly gives the government many options when deciding how to handle a particular asylum seeker, and detention or a temporary stay in Mexico are only two of those options. One statute, for example, provides that the government may grant parole to someone seeking admission to the United States “for urgent humanitarian reasons or significant public benefit.” Parole permits the immigrant to remain in the United States while their case is pending. Another statute permits an immigrant to be released on “bond of at least $1,500.” Kacsmaryk placed a great deal of weight on a provision of federal law which states that many asylum seekers “shall be detained for further consideration of the application for asylum,” and another provision saying that immigrants arriving from Mexico or Canada “may” be returned to that country while their case is pending. This was the basis for Kacsmaryk’s conclusion that the government only has two options. But even setting aside the fact that federal law gives the government other alternatives, such as parole or bond, the government still has a a fifth option that Kacsmaryk disregarded: nonenforcement. That’s rooted in a doctrine known as “prosecutorial discretion,” which permits the government to decide how it uses limited law enforcement resources. The idea behind prosecutorial discretion is that law enforcement officers, prosecutors, and similar officials do not have sufficient resources to target literally every single violation of the law — imagine how difficult it would be, for example, for police to issue a ticket to every single person who drives even a single mile per hour over the speed limit — so they must have discretion to decide when to let things go. If you’ve ever been pulled over and then let off with a warning, then congratulations! You’ve benefited from prosecutorial discretion. As a general rule, courts should not second-guess these decisions not to enforce a particular law against a particular individual. As the Supreme Court held in Heckler v. Chaney (1985), “an agency’s decision not to take enforcement action should be presumed immune from judicial review.” This presumption is especially strong in the immigration context. The Court explained in Arizona v. United States (2012) that “a principal feature of the removal system is the broad discretion exercised by immigration officials.” Indeed, the Court has maintained for more than a century that law enforcement officials retain this broad discretion even when faced with a statute that uses mandatory language — such as the statute Kacsmaryk relied on, which provides that certain asylum seekers “shall be detained.” Hence the Court’s holding in Railroad Company v. Hecht (1877) that “as against the government, the word ‘shall,’ when used in statutes, is to be construed as ‘may,’ unless a contrary intention is manifest.” All of which is a long way of saying that Kacsmaryk’s reading of federal law is so clearly wrong that it’s hard not to attribute his decision either to incompetence or bad faith. The outcome of the Texas case is likely to turn on a paperwork issue The Supreme Court’s decision last August to allow Kacsmaryk’s decision to temporarily remain in effect was genuinely shocking. That decision effectively forced the United States government to approach the Mexican government and try to strike a deal reinstating a policy that President Biden opposes — because Mexico had to agree to let asylum seekers remain in that country while their cases are pending in the United States. Judges, the Supreme Court warned in Kiobel v. Royal Dutch Petroleum Co. (2013), should be “particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.” But the Court abandoned this respect for the democratic branches when it ordered an elected president to bow to the foreign policy preferences of a Trump judge. The Supreme Court’s August decision, however, was only temporary. And it rested on narrow grounds. When a federal agency changes a policy, it typically must provide an explanation of why it did so. And a majority of the justices determined that Mayorkas’s June memo did not provide a sufficient explanation. In theory, this should be an easy problem to fix. The Supreme Court did not rule in August that Biden could never end the Remain in Mexico program, as Kacsmaryk effectively did. It simply held that Mayorkas must produce a new memo offering a more fulsome explanation, which Mayorkas did in October. But then the case reached the United States Court of Appeals for the Fifth Circuit, a court dominated by Trump appointees and other right-wing Republicans who think similarly to Kacsmaryk. And a Republican panel of Fifth Circuit judges determined that the October memo has “no present legal effect.” So, to summarize, the Supreme Court held that the Biden administration cannot end the Remain in Mexico policy until it fleshes out why it did so. But, when the Biden administration issued a new memo complying with the Supreme Court’s order, a Republican appeals court deemed that compliance irrelevant. The justices, in other words, must answer two important questions in Texas. One is whether Kacsmaryk’s misreading of federal immigration law should stand. But the other is even more basic: whether federal judges who disagree with an administration's policy can keep that policy on ice by constantly erecting new procedural barriers. Can Republican judges block a policy because it was inadequately explained, then continue to block it after the administration produces a 39-page memo explaining the policy? If the answer to this question turns out to be “yes,” then we need to ask who actually wields the power of the presidency right now. If the courts can place new procedural barriers between Biden and his preferred policies on the fly, then Biden ceases to be president in any meaningful policymaking sense. For what it’s worth, I think it is more likely than not that a majority of the justices will side with Biden in this case, and allow his administration to end Remain in Mexico. Among other things, the Biden administration asked the Supreme Court to expedite its handling of the Texas case, and the Court agreed to do so — had it not, the Court might not have decided this case until June of 2023. This willingness to decide Texas relatively quickly suggests that the Supreme Court isn’t looking to extend Remain in Mexico indefinitely by drawing out this case forever, as the Fifth Circuit seemed to do in its decision. But even if the justices move quickly, handing down a decision in June that reinstates the Biden administration’s power to set border policy, much of the damage will already be done. Kacsmaryk issued his decision last August. So for the last eight months, Judge Matthew Kacsmaryk, and not an elected president, has dictated US-Mexico policy on immigration. Visit us for more information: http://www.beverlyhillsimmigrationlaw.com/index.html

Supreme Court to hear arguments on ‘Remain in Mexico’ revival

The Supreme Court will hear oral arguments Tuesday in an immigration case that threatens to curb the power of presidents to reverse the policies of their predecessors — on the border and beyond. The case centers on the Biden administration’s attempt to end the “Remain in Mexico” policy, also known as the Migrant Protection Protocols, shortly after taking office. The Trump administration launched that policy in early 2019, and it forced migrants to wait in dangerous areas of northern Mexico for decisions in their U.S. immigration cases. Lower courts have ruled that the Biden administration didn’t follow the rules when it tried to follow through on a campaign promise and rescind the policy over humanitarian concerns. Those courts ordered the policy reinstated, and it remains in place. The Justice Department has warned the Supreme Court that if the justices decide that the Biden administration can’t end the policy, it could set a legal precedent that ties the hands of the executive branch on immigration and foreign relations. And immigrant advocates say a more expansive ruling from the conservative wing of the court could even limit future presidential administrations’ ability to reverse their predecessors’ policies in other areas. “It would have far reaching implications across administrative law: everything from environmental regulations to national highway and traffic safety regulations to aviation issues to food safety to drug safety,” said Elora Mukherjee, director of the Immigrants’ Rights Clinic at Columbia Law School. “The importance of this case before the Supreme Court cannot be overstated.” The high court will also consider what the law requires immigration officials to do with migrants who cross the border, particularly since Congress has not appropriated enough funds to detain all of them. Policy revived Republican officials from Missouri and Texas filed the lawsuit over the move to end the policy, which is now the first major immigration case to reach the high court since President Joe Biden took office. And similar to several immigration blockbuster cases before it, it tackles a question of administrative law that has real world consequences. Human Rights First documented more than 1,500 murders, rapes, kidnappings and other assaults against migrants enrolled in the program during the Trump administration. U.S. District Judge Matthew J. Kacsmaryk of the Northern District of Texas ruled in August the administration did not sufficiently explain its rationale for ending the program and ordered the government to reinstate it. He also found the administration violated a 1996 provision of the federal immigration statute by failing to either detain or return migrants crossing the border. The Biden administration appealed. Homeland Security Secretary Alejandro Mayorkas later released a 39-page memo outlining his concerns with the policy and reasons for rescinding it, including the “substantial and unjustifiable human costs on migrants.” But a three-judge panel on the U.S. Court of Appeals for the 5th Circuit sided with the states and refused to consider Mayorkas’ subsequent memo. The appeals court also backed the lower court’s finding that the immigration statute actually requires the federal government to return to Mexico any migrants it can’t detain. The Supreme Court agreed to take up the case just a few months ago on a fast-tracked schedule. The Justice Department has argued the lower courts misinterpreted the federal immigration statute. The appeals court also “ignored bedrock principles of administrative law” by refusing to consider further explanation, government lawyers said in court filings. Texas and Missouri, backed by briefs from conservative legal groups, including one led by former Trump adviser Stephen Miller, have countered that federal immigration laws require the U.S. to detain migrants crossing the border, either in detention facilities or outside the U.S., except for case-by-case exceptions. The states also dismissed Mayorkas’ later memo as “repeated gamesmanship.” Potential fallout If the justices rule Mayorkas’ subsequent memo cannot be considered, it could create a “one-and-done rule” for any federal agency that wanted to reverse policies made under prior administrations, said Karen Tumlin, founder and director of Justice Action Center, who defended the Deferred Action for Childhood Arrivals program, or DACA, at the high court two years ago. “It basically comes up with a warning gun: You get one shot to undo the policy. If one single judge in any venue thinks you didn’t do it right, then you can’t come back,” Tumlin said. A ruling in favor of Texas and Missouri could also carry sweeping consequences regarding how asylum is processed at the border. Tuesday’s hearing comes as the Biden administration faces heightened pressure from Congress over how to manage the southwest border, which is seeing some of the highest migration levels in years. While the government argues against the policy in court, Department of Homeland Security officials told reporters earlier this month the agency is enrolling more migrants in the reinstated “Remain in Mexico” policy in anticipation of lifting separate pandemic-related border controls. Advocates have said migrants sent back to Mexico under this policy are vulnerable to gang violence and lack sufficient access to American immigration lawyers. “This case literally is about a matter of life and death,” said Marielena Hincapié, executive director of the National Immigration Law Center. “‘Remain in Mexico’ is not a normal immigration policy. From our perspective, it’s a human rights disaster and a civil rights disaster.” And if the high court decides the 1996 law does mandate the government to return to Mexico any migrant it doesn’t have capacity to detain, the Biden administration might face pressure to significantly ramp up the number of migrants it sends back over the border. Funding issue The district court judge ordered the government to make a “good faith” effort to reimplement the program unless Congress funds sufficient detention capacity for DHS to detain all migrants who are subject to mandatory detention. Customs and Border Protection logged more than 220,000 encounters with migrants in March alone. For fiscal 2022, congressional appropriators gave the Department of Homeland Security enough money to fund 34,000 immigration detention beds at any given time. “That is an insane interpretation of a statute passed in 1996,” Tumlin said of the states’ argument. “It would really conflict with Congress’ understanding of how detention is funded.” Justice Department lawyers have also argued in court briefings this interpretation would mean every presidential administration since that law was passed has been in violation of it, including former President Donald Trump, whose administration enrolled some 70,000 migrants in the program but did not return or detain everyone. Punt possible The high court could opt instead for a ruling that wouldn’t upend executive branch authorities over immigration, as it has in two immigration-related cases in recent years For instance, the high court could decide Mayorkas’ follow-up memo was fair game and punt the case back to the appeals court to consider it. This would keep the “Remain in Mexico” policy in place for the time being, but leave the door open for the Biden administration to rescind it once the Texas court is satisfied procedural requirements were met. Columbia Law School’s Mukherjee said a narrower ruling sending the case back down would be a “great compromise position.” In June 2020, the Supreme Court ruled 5-4 to block the Trump administration from revoking DACA after finding it had not followed correct procedures to terminate it. A year earlier, the justices blocked the Trump administration from adding a question about citizenship status to the decennial census after similarly taking issue with government officials’ stated reasoning for the change. Visit us for more information at: http://www.beverlyhillsimmigrationlaw.com/index.html

Supreme Court to revisit Trump’s ‘Remain in Mexico’ policy

The Supreme Court on Tuesday will hear arguments over the Biden administration’s effort to end a controversial Trump-era immigration measure that requires asylum-seekers at the southern border to stay in Mexico while their applications are processed. The dispute will determine whether the Biden administration must continue the policy — which remains in effect — despite the Department of Homeland Security’s (DHS) conclusion that the measure is not in the United States’ national interest. More broadly, the case concerns how much discretion the executive branch has in managing U.S. border enforcement policies, said Kevin Johnson, an immigration law expert and professor at the University of California, Davis. “Historically, there’s been a great deal of deference given to the president and the administration when it comes to how to enforce the borders,” he said, noting that new questions arose under former President Trump about the scope of this authority. “And now we’ve got a new administration that wants to unravel or dismantle some of the Trump administration’s policies, and the question is how and what discretion does the executive branch have to do that.” Trump’s “Remain in Mexico” policy, implemented in 2019, blocked migrants at the Mexican border from entering the U.S. to apply for asylum, leaving tens of thousands of people awaiting their fates in Mexico and subjecting them to potential persecution and abuse. According to a coalition of immigration rights advocates, the policy contributes to a “humanitarian crisis” at the southwest border. “There is no way to continue the Remain in Mexico program without subjecting migrants to needless violence, suffering and unfair process,” reads an amicus brief from the coalition, led by groups that include the Justice Action Center. The Trump administration sent more than 70,000 asylum-seekers to Mexico under the policy, formally called the Migrant Protection Protocols, a departure from a previous practice of generally allowing those fleeing violence to cross the border and apply for asylum within the U.S. Early into Biden’s White House tenure, his administration sought to formally end the Trump-era policy. DHS Secretary Alejandro Mayorkas issued a memorandum in June 2021 ordering an end to the program, which prompted a legal challenge by the attorneys general of Texas and Missouri. Texas-based U.S. District Judge Matthew Kacsmaryk, a Trump appointee, ruled against the Biden administration. He held that the administration had failed to provide an adequate justification and follow proper procedures in effectuating its rescission. But another part of Kacsmaryk’s ruling may overshadow that during oral arguments: his agreement with the Trump administration that federal immigration law requires asylum-seekers either be detained or returned to Mexico. Johnson, of the University of California, Davis, said such an interpretation contradicts how every president prior to Trump in the last 20 years has applied the statute. “I think that’s a tough argument to make given the language of the statute, which seems to give the president discretion to decide about returning people to Mexico,” he said. In Kacsmaryk’s ruling last August, he ordered that the Trump-era policy would have to remain in place until the Biden administration undergoes a lengthy administrative procedure to overturn it. The DHS undertook an additional review of the program, leading Mayorkas in October to again order its termination. But a federal appeals court upheld the district court ruling, rendering DHS’s second order ineffective and prompting the Biden administration’s appeal to the Supreme Court. “DHS has thus been forced to reinstate and continue implementing indefinitely a controversial policy that the Secretary has twice determined is not in the interests of the United States,” the administration wrote in its December petition for appeal. Johnson said asylum-seekers face difficult living conditions when required to stay in Mexico while their claims are processed in the U.S. “Some would say that the migrant protection protocol really was just designed to add an extra deterrent to seeking asylum and having a hearing, and to punish, in some way, the migrants by forcing them to live in what some would say is squalor in Mexico where there aren’t facilities to house them,” he said. Judd Stone II, the solicitor general of Texas, will argue the case Tuesday on behalf of Texas and Missouri, the original states to contest the Biden administration’s move. Those challengers now have the backing of 19 other GOP-led states, led by Indiana, that filed an amicus brief in the case. “In recent years, States have borne costs related to education, healthcare, and other government-assistance programs serving the rising influx of illegal aliens released into the country — not to mention the human costs to vulnerable populations resulting from human trafficking and drug smuggling (particularly dangerous drugs like fentanyl) across the border,” they wrote. “(Migrant Protection Protocols) proved highly successful at staunching the flow of illegal aliens across the border.” Visit us for more information: http://www.beverlyhillsimmigrationlaw.com/index.html

Will the Supreme Court be as deferential to Biden on immigration as it was to Trump?

Another day, another hot-button issue at the U.S. Supreme Court. This time the question is whether the Biden administration must continue to enforce the Trump-era program known as Remain in Mexico. The policy requires asylum-seekers, mainly from Central and South America, to remain in Mexico while they wait for a hearing in a U.S. immigration court. The Trump administration devised the Remain in Mexico policy in hopes of deterring migrants from streaming into the U.S. with asylum claims. The Biden administration suspended the program immediately upon taking office, but the 5th U.S. Circuit Court of Appeals, acting on a challenge brought by Texas and Missouri, ordered the new administration to continue the Trump policy. On Tuesday, the Supreme Court hears the argument in an expedited appeal. The case centers on the meaning of numerous immigration provisions, how they have been interpreted for decades and, bluntly put, whether the Supreme Court will be as deferential to the Biden administration as it was to the Trump administration when it comes to immigration enforcement policies. How the law works Immigration law operates like a Russian nesting doll: You open it up, and another doll is inside and then another and another. According to the states of Texas and Missouri, backed by 21 other red states, the law says that all asylum-seekers "shall be detained," and "shall" means that they must be detained for however long it takes until their cases are decided in court. "The administration basically has two choices," says Indiana Solicitor General Thomas Fisher. "You either detain people seeking asylum at the border," or "if you don't have the detention space, you're sort of left with returning them to Mexico." Fisher wrote an amicus brief on behalf of 19 states supporting Texas and Missouri. But that is not the way the law has ever been enforced by any administration, Democratic or Republican, including the Trump administration. In fact, while the "shall" language has been in the immigration law since 1903, so has other arguably contrary language, using qualifiers and words such as "may." For example, another provision says the government "may" release asylum-seekers into the U.S. "on a case-by-case basis for 'urgent humanitarian reasons.' " The Biden administration argues that this provision serves as an alternative release valve, allowing the government to release asylum-seekers who "present neither a security risk nor a risk of absconding." A complicated issue Former immigration officials, Republican and Democratic, say there's a good reason for the fudgy language: Everything about borders is complicated. To begin with, there has been no major rewrite of the nation's immigration laws in more than 25 years. The last time the law was updated, in 1996, legislative disagreements were resolved with compromise language to deal with the fact that, on the one hand, Congress wanted to make it more difficult to release asylum-seekers pending their hearings and, on the other, detaining everyone would be prohibitively expensive. At no time since the 1996 law was passed has everyone — or even most of the people — seeking asylum been detained, including in the Trump years. The problem is that "Congress has only appropriated money for Homeland Security to detain around 30- to 40-thousand individuals at any given moment," says Stewart Verdery, who served as assistant secretary of homeland security during George W. Bush's administration. These days, Verdery observes, over a million people cross the border a year, so "by definition, you can't detain everybody." Did Remain in Mexico work? Immigration specialists disagree as to how effective the Remain in Mexico policy has been as a deterrent. Indiana's solicitor general, Fisher, argues that the Trump program was working. "The volume of applicants showing up at the border decreased precipitously," he says, citing a 2019 report by the Trump administration. "That's false," says Jeh Johnson, who served as the Obama-era secretary of homeland security from 2013 to 2017. On the Trump administration's watch in 2019, "we had almost 1 million apprehensions on our southern border ... the highest number we've seen in years," Johnson observes. Under the Trump administration, only 68,000 people were put into the Remain in Mexico program by Customs and Border Protection — a tiny fraction of those seeking asylum in the United States. Implications for foreign policy At the heart of all this is a separate legal question: whether the courts should second-guess the foreign policy judgments that undergird this and other immigration policies. At this point, neither Mexico nor the Biden administration wants Remain in Mexico to continue. Both see it as a flawed program in which migrants in squalid camps at the border have little ability to find lawyers or information for their hearings and are subject to violent attacks, kidnapping, extortion and rape by criminal cartels. What's more, the Biden administration sees the lower court's order as invading its ability to deal effectively with Mexico. A group of former immigration officials from both parties echoes that point in friend-of-the-court briefs filed in this case. For instance, Verdery points to the port of San Ysidro, south of San Diego, the busiest port of entry in the U.S., with 32 lanes of traffic, trucks, cargo, tourists and an unknown number of migrants trying to cross the border illegally. It's a place where billions and billions of dollars in trade and people transit across the border every day, according to Verdery, and managing priorities with Mexico is a complicated and fluid task. To cite just one example, he notes that after the 9/11 attacks, the U.S. and Mexico went to a maximum level of protection and then over time relaxed restrictions because the economies in both countries were suffering. Such continually changing circumstances are part of why the courts have largely deferred to the executive branch in managing the border with Mexico. "This is something that has to be worked out between governments, and it really is not a place for a court to get involved," Verdery says. Johnson, the former DHS secretary, echoes that sentiment, contending that the lower court was outside its constitutional lane when it told the executive branch of the U.S. government to tell the government of Mexico to restore Remain in Mexico. "Rarely, if ever, has a court decision intruded into the foreign policy of the United States in this way," Johnson says. But countering that argument, Texas and other Republican-dominated states argue that in 1996 Congress intended to narrow the executive branch's discretion and that now is the time to hold true to that mandate. Visit us for more information at: http://www.beverlyhillsimmigrationlaw.com/index.html

McCarthy to head delegation of Republican lawmakers to southern border

House Minority Leader Kevin McCarthy (R-Calif.) is leading a delegation of Republican lawmakers to the southern border in Texas on Monday, his office announced on Saturday. McCarthy and nine other Republicans will be traveling to the southern border at Eagle Pass, Texas, in the minority leader’s second congressional delegation to the southern border this Congress, his office noted. The other GOP lawmakers joining McCarthy include House Republican Conference Chairwoman Elise Stefanik (N.Y.) and Reps. Gary Palmer (Ala.), Tony Gonzales (Texas), Randy Weber (Texas), Michael Guest (Miss.), Chip Roy (Texas), Marjorie Taylor Greene (Ga.), Diana Harshbarger (Tenn.) and Blake Moore (Utah). “Today the border crisis is exploding – but the Biden administration is about to make this unprecedented catastrophe even worse by rescinding Title 42,” McCarthy’s office said in a release. “House Republicans stand with our brave Border Patrol agents on the front lines of this crisis, and we demand that the Biden administration reverse their decision to end Title 42 and fully enforce the immigration and border security laws of our nation.” The development comes as the Biden administration recorded roughly 221,000 migrant arrests at the southern border for the month of March — the highest monthly number of border encounters in two decades. Earlier this month, the Biden administration announced it would be rescinding Title 42, a Trump-era policy that allows migrants to rapidly be turned away from the border and barred from seeking asylum. The policy is set to end on May 23. White House press secretary Jen Psaki confirmed earlier this week that “we are planning and preparing for the end of Title 42 enforcement on May 23.” “There are a range of ideas out there in Congress: Democrats, Republicans, others, some who support a delay of Title 42 implementation, some who strongly oppose it,” she added. “And there are a range of other ideas of reforming our immigration system. This would all require congressional action. We’re happy to have that conversation with them.” Visit us for more information at: http://www.beverlyhillsimmigrationlaw.com/index.html

Abbott’s controversial truck inspection policy found zero drugs, weapons: report

Texas Gov. Greg Abbott’s (R) order for thorough inspections of every commercial truck at the Mexico border this month yielded little results: no drugs, weapons or any type of contraband, a report from The Texas Tribune found, citing data from the Texas Department of Public Safety (DPS). Abbott ordered the increased inspections earlier this month, citing a surge of migrants on the border and a lagging response to address it from President Biden. After reaching agreements with each of Mexico’s governors to increase border patrols and security, Abbott lifted the order last Friday. From April 8 to April 16, state troopers conducted more than 4,100 inspections, finding no illegal contraband, according to The Texas Tribune. However, 850 trucks were taken off the road for various issues with vehicle equipment, and 345 trucks were cited for oil leaks or under-inflated tires. At a press conference last Friday, DPS director Steve McCraw said there was no expectation to find illegal shipments of drugs or weapons because the “cartels knows what they’re doing.” “They certainly don’t like 100 percent inspections,” he said. “Once that started we saw a decreased amount of trafficking across those bridges — common sense.” Abbott agreed, saying the cartels withheld their inventory during the period. The governor also said about 25 percent of the vehicles inspected were found to have some safety violation. He added the “tremendous number” of safety violations caught “could have saved the lives of Texans.” The increased inspections of commercial trucks drew backlash for halting trade at the border with Mexico, a nation among the largest trading partners with the U.S. Abbott’s directive was also in response to Biden’s lifting of Title 42, a controversial policy allowing for the expulsion of migrants at the border during a public health crisis. The Texas governor has increasingly slammed Biden for inaction at the border, suggesting the disruption to trade was the president’s fault and that Americans should take it up with him. In March, more than 220,000 migrants were encountered on the border, the highest number reported since 2000. Abbott last Friday said there would be a “reimplementation” similar to the inspection order if immigration wasn’t handled by the administration. “A consequence of that is financial pain,” he said. “The financial pain is necessary to get the public to insist that their government leaders — such as the presidents of the two countries involved — take the action that is needed to solve this problem.” Visit us for more information: http://www.beverlyhillsimmigrationlaw.com/index.html

Border visit backfires on vulnerable Senate Dem

Her home state shares a border with Canada. So when New Hampshire Sen. Maggie Hassan recently showed up more than 2,000 miles away, at the U.S border with Mexico, it created a backlash. Not just among Republicans — who mocked her as ‘MAGA Maggie’ and dismissed her appearances in Texas and Arizona as a desperate attempt to appear tough on border security — but within her own party. Latino leaders reacted with rage to her southern border visit in early April and her opposition to the Biden administration’s plan to lift the Trump-era border restriction known as Title 42. Members of the New Hampshire Democratic Latino Caucus resigned from their party leadership posts in an angry public letter. A Democratic state lawmaker took to the House floor to rail against Hassan and Rep. Chris Pappas (D-N.H.), who also opposes the administration’s effort to end Title 42. More than a dozen progressives and immigration advocates gathered in Portsmouth Tuesday — the same day President Joe Biden was visiting the city — to protest Hassan’s stance and demand that she meet with them. The fierce pushback is a glimpse into the volatile politics surrounding Title 42 and the pressures buffeting vulnerable swing-state senators like Hassan — one of four Democratic incumbents whose fate in November will likely determine control of the Senate. “I’m really furious. I don’t see what she thought she was going to gain by doing this,” said Eva Castillo, one of the signers of the letter and director of the New Hampshire Alliance for Immigrants and Refugees. “I really think she’s trying to pander to the right and she thought doing this is going to help her win some more support.” Castillo said she’s considering leaving her ballot blank for her U.S. Senate pick. “In the last election, she was vulnerable and she’s even more vulnerable now. So, if we all decided to just leave it blank, that would speak very loudly,” she said. Hassan isn’t alone in criticizing the Biden administration over plans to lift Title 42. A number of House and Senate Democrats — including Sens. Mark Kelly of Arizona, Raphael Warnock of Georgia, and Catherine Cortez Masto of Nevada, the four most endangered Senate Democrats — have called on the administration to delay the rescission of the policy, which allows border agents to quickly kick out thousands of migrants without letting them seek asylum. Yet Hassan is the only one of the group — except for Kelly, who represents a border state — to visit the border to emphasize the need for border security. “She’s back in election mode, so she’s going to out-Republican the Republicans on the border. Is she disappointing? Absolutely,” said Arnie Arnesen, a former Democratic gubernatorial candidate and liberal radio talk show host. “I don’t think she’ll get one more vote for what she’s doing… I think it’s foolish, but we will be voting for Maggie, not because of Maggie but because we believe in democracy and she won’t vote for Mitch McConnell.” Immigration isn’t necessarily a top-of-mind issue in New Hampshire, according to several Democratic strategists and leaders. Andrew Smith, director of the University of New Hampshire Survey Center, said there isn’t any recent polling on immigration views in the state, but that the public’s view on Title 42 right now is “not likely to impact many votes in November.” Still, Hassan’s reelection is taking place against the backdrop of an anxious mood in the state. Nearly two-thirds of respondents in a recent UNH Granite State Poll believe the U.S. is on the wrong track; only 28 percent think it’s headed in the right direction. Biden’s approval ratings are underwater: 47 percent approve of his job performance, while 53 percent disapprove. A Granite State Poll released this week puts Hassan in a statistical tie in match-ups with four potential Republican challengers. Just 35 percent have a favorable opinion of her, compared to 51 percent who view her unfavorably. Arnesen and other Democrats in the state noted that Hassan has upset members of her own party before with her position on immigration. In 2015, as governor, she became the first Democratic governor to call for a complete halt to the U.S. accepting Syrian refugees until the government could “ensure robust refugee screening.” But Hassan’s precarious position this year has led many to assume her trip — and a subsequent video she shared to Twitter in front of the border wall — was a blatant political ploy. To some Democrats, it appeared to be an embrace of GOP tactics and an unnecessary doubling down on an issue that Republicans are going to criticize her on regardless of what she says or does. “I’m not aware of anyone who thought that was a terribly good idea. It seems like the breakdown of Democrats is: Some are upset, others are perplexed — and I’m not sure anyone is happy about it,” said one long-time New Hampshire-based Democratic political insider, who spoke on condition of anonymity to speak freely. “I love Maggie… but I don’t think anyone really understands why she did it.” Hassan’s moves have also led to a fallout with Latino leaders in the state. “The dangerous rhetoric and its accompanying attitude is something we expect from the New Hampshire Republican Party and their fear-mongering slew of candidates,” they wrote in their public letter to the state party chair, “but when one of our Democratic leaders acts in the same way, we must draw a line.” Hassan’s allies expect her stance on immigration — and willingness to speak up against the Biden administration — will play well with moderate and independent voters. That’s no small consideration in a state where independents represent the largest group of registered voters. A recent Morning Consult/Politico survey found that while 60 percent of Democratic voters support the Biden administration lifting Title 42, only 31 percent of independents approve of it. More than 50 percent of independents disapprove. A recent Gallup poll also found that independents are becoming increasingly concerned about illegal immigration, with 39 percent concerned a great deal about it. “Maggie is trying to figure out the right path to do this and it doesn’t necessarily mean falling into lock step with the administration. That’s who she is. She does her homework,” said Sylvia Larsen, a former Democratic state Senate president who was in office for 20 years. “We have, as every state [does], a left wing of the Democratic Party that is more vocal about these issues but in terms of walking the line… people will go along with this effort to make sure there’s security, make sure there’s adequate health safeguards.” Hassan’s office would not comment on the criticism she has received for her position on Title 42 and recent border trip. But a spokesperson for Hassan explained that on the trip, which was her third to the southern border, the senator heard from law enforcement about the urgent need for additional resources — including personnel, technology and physical barriers — needed to address an expected increase in border crossings. “As a member of the Homeland Security Committee, Senator Hassan will continue to push the Biden Administration not to end Title 42 until it has provided a comprehensive plan to ensure a safe, secure, and humane border,” Laura Epstein, spokesperson for Hassan, said in a statement. Republicans have shown every intention of pressing Hassan on the issue. For months, her GOP opponents have been criticizing her on immigration. They’ve continued to slam her in the weeks following her border trip, dismissing it as a photo-op, and a sign she recognizes her vulnerability. “Maggie’s photo-ops won’t solve the crisis her voting record helped create,” said GOP challenger Chuck Morse, the New Hampshire Senate president, in a statement. Kevin Smith, another Republican Senate candidate and former town manager of Londonderry, N.H., has repeatedly railed against Hassan on the border issue — and after his own border visit in February, challenged her to do the same. Many Democrats familiar with Hassan’s electoral history — she won two terms as governor before narrowly knocking off GOP Sen. Kelly Ayotte to capture the seat in 2016 — argued that she’s still well positioned to win a second term and that immigration is unlikely to be a determinative issue in November. “Maggie tends to be a moderate kind of practical person, so she may lose some of the left wing of our party on this issue but they also know she stood up on so many other issues,” Larsen said. “I think overall she’ll come out OK with this decision.” Visit us for more information at: http://www.beverlyhillsimmigrationlaw.com/index.html

Cuellar: White House listening to ‘immigration activists’ on Title 42

Rep. Henry Cuellar on Sunday accused the White House of paying too much attention to “immigration activists” as he urged the Biden administration to reconsider its decision to roll back a Trump-era deportation policy for migrants at the southern border. Cuellar (D-Texas) — a centrist and one of the administration’s most outspoken Democratic critics on issues related to the U.S.-Mexico border — echoed the concerns of a growing number of candidates and lawmakers within his own party who oppose President Joe Biden’s plan to end the public health order known as Title 42 on May 23. That policy allowed for the immediate expulsion of migrants from the nation’s southern border without due process, citing the need to protect the homeland from the spread of Covid-19. Biden had long promised to revoke Title 42. But even as the state of the pandemic has improved in recent months, Democrats fear the policy’s repeal could exacerbate a precipitous increase in migrants at the U.S.-Mexico border and expose the party to Republican attacks ahead of the midterm elections in November. “Yes, they’re listening to the immigration activists,” Cuellar told “Fox News Sunday” in an interview, referring to the White House. “But my question is, who’s listening to the men and women in green and in blue? And more importantly, who’s listening to the border communities, the sheriffs, the landowners, the rest of the people that live on the border?” “How can you ask for international travelers to make sure … they’re vaccinated or even show their Covid-19 negative tests if they fly in?” Cueller added. “How can we have the federal public emergency extended to July 15 and say there’s a pandemic going on in the United States, but at the border, everything’s fine and just let people in into the United States. … Those are mixed messages.” Visit us for more information: http://www.beverlyhillsimmigrationlaw.com/index.html

As border rule change looms, Mexico frets about U.S. immigration strategy

MEXICO CITY, April 22 (Reuters) - Mexican officials are concerned the repeal of a measure adopted under the Trump administration to tighten the U.S. border will encourage a spike in migration and more profits for criminal gangs unless Washington does more to help mitigate the impact. The United States has said it will on May 23 end the so-called Title 42 order issued during the coronavirus pandemic in 2020 that has effectively shut down the U.S. asylum system at its shared 2,000-mile border with Mexico. read more Title 42 has allowed U.S. authorities to quickly expel migrants to Mexico, and its removal risks pushing the record number of migrants attempting to enter the United States higher still, officials and politicians said. "The flow of migrants we have now is already out of control," said Rosa Maria Gonzalez, a lawmaker from Mexico's center-right opposition National Action Party who represents the northern border state of Tamaulipas and heads the lower house of Congress migration committee. Gonzalez said she expected more people to try to get into the United States when Title 42 ends, and urged Washington to improve migrants' access to the U.S. labor market and speed up processing of asylum requests to ease pressure on the border. Mexico's government, which never favored the hardline immigration stance of former U.S. President Donald Trump, has looked on warily as his successor Joe Biden has sought to adopt more moderate policies, mindful that the changing signals could fire up more people to make the journey. So far the U.S. government has not proposed to Mexico any additional measures to address the likely outcomes of doing away with Title 42, and that needs to be addressed, a Mexican official said, speaking on condition of anonymity. The official made the comments before the arrival of Julieta Valls Noyes, a senior U.S. migration official, who flew to Mexico this week for talks due to last until the weekend. Unless the U.S. government steps up repatriation flights of migrants apprehended at the border, Title 42's repeal could be an "enormous incentive" to cross, and create opportunities for organized crime, a second Mexican official said. Mexico has little scope to tighten its southern border, the official said, urging the United States to work more closely with Mexico on closing down the financial networks used by criminal gangs to make money by exploiting migrants. The Biden administration, in compliance with a court order, has restarted another Trump-era program obliging asylum-seekers to await U.S. hearings in Mexico. There has been no indication yet that scheme would be used to offset the impact of Title 42's withdrawal, one of the Mexican officials said. The U.S. Department of Homeland Security (DHS) said it had set up a comprehensive plan to manage any increase in migrant numbers, would increase personnel and resources as needed, and had redeployed over 600 law enforcement officers to the border. "We are increasing our capacity to process new arrivals, evaluate asylum requests, and quickly remove those who do not qualify for protection," a DHS spokesperson said. The U.S. State Department said it continued to work closely with Mexico on migration management and alerted it ahead of time to upcoming changes that Title 42's repeal would involve. Mexico's national migration authority and the foreign ministry did not reply to requests for comment. Mexico has had to deploy thousands of National Guard troops to police its frontiers and migrant smuggling routes. U.S. officials are on track to arrest even more migrants at the border with Mexico this year after record-breaking figures in Biden's first year in office. In the past week, they have logged about 9,000 migrant encounters per day, one current and one former U.S. official told Reuters. The influx of migrants that Title 42's elimination is expected to fuel could spark humanitarian crises on Mexico's northern border, said Victor Clark Alfaro, a migration expert at the Binational Center for Human Rights in Tijuana. Many migrants are already waiting in shelters in Tijuana to apply for asylum or for hearings, he said, anticipating further strains on already overwhelmed U.S. immigration courts. Compared with the same period in 2021, Mexico's detentions of migrants doubled in the first two months of this year after reaching the highest levels on record last year. Their often perilous trek across Mexico has created a lucrative trafficking business for smugglers, according to officials. Thousands more migrants stranded in camps on the U.S-Mexico border have also become prey for extortion, they say. "They're making so much money that the (gangs) obviously don't want (migrants) to leave," said congresswoman Gonzalez. Visit us for more information at: http://www.beverlyhillsimmigrationlaw.com/index.html

US begins phasing out COVID-driven asylum restrictions

NEW ORLEANS (AP) — The Biden administration said Friday it has begun phasing out use of a pandemic-related rule that allows migrants to be expelled without an opportunity to seek asylum as 22 states fight in court to preserve the policy. U.S. authorities have processed more single adults from Guatemala, Honduras and El Salvador in recent weeks under immigration laws, which include a right to seek asylum, said Blas Nuñez-Neto, acting assistant Homeland Security secretary for border and immigration policy. The pandemic-related rule is set to expire May 23. Nuñez-Neto’s statement was part of a filing in federal court in Lafayette, Louisiana, where Louisiana, Arizona and Missouri sued this month to keep the rule. Eighteen other states later joined and, on Thursday, the states asked a judge to stop what they called the “premature implementation” of the end of the rule. Nuñez-Neto said applying non-health related immigration laws was “not novel” during the pandemic and that increasing use of them on single adults from Central American countries will help prepare for the May 23 expiration. About 14% of single adults from Guatemala, Honduras and El Salvador were processed under immigration laws during a seven-day period ending Thursday, Nuñez-Neto said. That’s up from only 5% in March, according to government figures. Single adults from those countries have been targeted under the rule because Mexico has agreed to take them back while the rule is in effect, an option that will disappear for U.S. authorities when the powers are lifted. It was unclear how quickly the judge in the case, U.S. District Judge Robert Summerhays, appointed by former President Donald Trump, would rule on the states’ request for a restraining order. Meanwhile, the state of Texas on Friday filed its own challenge to the termination of the rule in federal court in Victoria, Texas. The case had not been assigned to a judge as of Friday afternoon. The Justice Department declined comment on the Texas suit. Migrants have been expelled more than 1.8 million times under the rule, which was invoked by the Trump administration in March 2020 to prevent the spread of COVID-19. Advocates for asylum-seekers support the end to the rule, which they say endangers people fleeing persecution back home and violates rights to seek protection under U.S. law and international treaty. The states challenging the administration say the U.S. is not ready for a likely influx of migrants resulting from the rule’s end, straining public services and economies. ___ Associated Press writer Elliot Spagat in San Diego contributed to this report. Visit us for more information at: http://www.beverlyhillsimmigrationlaw.com/index.html

Biden Faces GOP Fire, Democratic Angst as Migrant Cases Unfold

President Joe Biden faces political peril as a showdown at the Supreme Court on immigration coincides with widespread criticism of his plan to end pandemic-related border controls. Justices on Tuesday will consider whether Biden can end former President Donald Trump’s “remain in Mexico” policy, which has forced tens of thousands of asylum-seekers to stay south of the border while their applications are processed. A federal trial judge ordered the Biden administration to restart the program. A ruling against the administration would further complicate Biden’s handling of immigration -- an issue on which voters already give him low marks, polls show. Republicans are preparing to highlight the migrant surge at the southern border in the November elections, while a growing number of Democratic lawmakers are distancing themselves from the administration’s plan to scrap the separate, pandemic-driven Title 42 border controls, fearing the influx will only worsen. “Republicans smell blood,” said Frank Sharry, executive director of the liberal immigrant-rights group America’s Voice. Democrats are “getting division in the ranks.” There are no easy answers for the president. His Democratic base has vented frustration at the slow progress of rolling back his predecessor’s policies. At the same time, near-record border apprehensions have fueled Republican accusations that Biden’s desire for more welcoming policies are to blame. Border agents had more than 221,000 encounters with migrants last month at the southwest border, the highest numbers in at least two decades. GOP Texas Attorney General Ken Paxton on Friday filed his 10th lawsuit against the Biden administration over the border situation, alleging that Title 42 measures are “the only rules holding back a devastating flood of illegal immigration.” Fresh Ammunition Tuesday’s remain-in-Mexico arguments may give critics fresh ammunition. The administration’s courtroom opponents, Texas and Missouri, say termination of the Migrant Protection Protocols program would mean the “en masse release” of undocumented immigrants into the country. Earlier: DC to End Trump Rule Used to Expel Migrants During Pandemic The states say illegal crossings and border encounters soared after the program’s temporary suspension last year. A brief filed by the America First Legal Foundation, a group founded by former Trump policy adviser Stephen Miller, said the Biden administration has released 750,000 undocumented immigrants since taking office. Immigration advocates say that characterization is misleading, pointing to studies finding the vast majority of asylum seekers show up for their hearings. They say the policy forces people to live in dangerous and squalid conditions in Mexico -- and makes it more difficult for migrants to secure legal assistance. “It has effectively ended asylum access for thousands and thousands of people since it went into effect,” said Ahilan Arulanantham, a professor and co-director of UCLA School of Law’s Center for Immigration Law and Policy, which filed a brief backing the administration. Biden’s Department of Homeland Security rescinded the program last year, but U.S. District Judge Matthew Kacsmaryk in Texas ordered it reinstated, saying the administration was violating federal immigration law and its explanation for the change was inadequate under the law that governs administrative agencies. A federal appeals court upheld that order. The conservative-dominated Supreme Court hinted at its leanings in August, rejecting Biden’s request to block Kacsmaryk’s ruling while the litigation went forward. Partisan Divide The dispute turns on the intersection of three provisions in federal immigration law. One says asylum applicants who aren’t clearly admissible “shall be detained,” a second says DHS can let those people stay in the U.S. on a “case-by-case basis,” and a third lets an administration return migrants to the country from which they arrived. Texas and Missouri say that DHS lacks the capacity to detain everyone, so it must invoke the provision that lets people be returned to Mexico. “DHS must faithfully comply with Congress’s mandatory-detention obligations -- which means it cannot refuse to use a lawful tool to carry out that obligation merely because it prefers not to do so,” the states argued in court papers. U.S. Solicitor General Elizabeth Prelogar, who represents the Biden administration, said not even the Trump team adopted that interpretation. She said the court should defer to DHS’s conclusion that the program poses unacceptable risks to migrants and undercuts diplomatic efforts to address immigration issues. The order to restart the program “dramatically intrudes on the executive’s constitutional and statutory authority to manage the border and conduct the nation’s foreign policy,” she argued. Unpopular Policies The Biden administration is also under pressure to delay or scrap the planned May 23 end of the Trump-era Title 42 border controls, which allowed agents to quickly expel migrants during the coronavirus pandemic. U.S. officials and lawmakers in both parties say the result could be yet another surge of migrants. About Title 42, the Pandemic Order Biden Is Lifting: QuickTake The White House has said that Title 42 is a public-health provision and that any decisions are made by the Centers for Disease Control and Prevention. Aides said preparations are being made to handle the expected influx of migrants after the order is lifted. But the administration’s position is unpopular. Among registered voters nationwide, 56% said they disapproved of the decision to lift Title 42, according to a Morning Consult/Politico poll released this month, making it Biden’s most unpopular policy move to date in the survey. Some immigrant-rights advocates blame the White House and top Democrats. They say party leaders have been too cautious in defending efforts to create a more welcoming immigration system -- letting Republicans fill the void with statements that fuel anti-immigrant sentiments. And some of Biden’s moderate allies in the Senate, including Homeland Security and Governmental Affairs Committee Chairman Gary Peters and Chris Coons of Delaware, are joining the criticism. The breadth of opposition shows how seriously Democrats believe a rush at the border could politically damage the party. “Right now this administration does not have a plan,” Democratic Senator Mark Kelly of Arizona, who himself will face the voters in November, told reporters earlier this month during a tour of the border. “To be honest, it’s going to be a crisis on top of a crisis.” The case is Biden v. Texas, 21-954. Visit us for more information at: http://www.beverlyhillsimmigrationlaw.com/index.html

Election-year politics complicates Senate immigration talks

Nascent immigration talks are colliding with election-year politics over the border, a significant hurdle to chances of a deal. Advocates say they are willing to give Senate Judiciary Committee chairman Dick Durbin (D-Ill.) broad leeway as he looks to revive bipartisan talks. And, they argue, there are incentives for Congress to capture the long sought legislative white whale now amid multiple court fights, including on a key Obama-era program, and the threat of a GOP-controlled House starting in 2023. But there are also tripwires that could scuttle already uphill chances of an agreement: Several Democrats are wary of the administration’s actions on the border. And Republicans view immigration as a key campaign attack heading into November. “The politics of immigration right now … and the politicization of the border issues, it’s just, from my point of view, it’s poisoned the well to work cooperatively,” said Douglas Rivlin, the director of communications for America’s Voice. Trying to get a deal on immigration has proven to be a heavy lift even in non-election years. A 2013 effort, which included a pathway to citizenship, passed the Senate only to stall in a GOP-controlled House. A 2018 attempt, which took place early in the calendar year, fell apart after the Trump administration and the Department of Homeland Security (DHS) came out hard against a bipartisan group’s proposal that would have provided $25 billion for the border wall. Immigration has also emerged as a lightning rod issue for Republicans, as many in the party have followed Trump’s shift to the hard right on the issue. To try to avoid traps that have quickly snared previous talks, Durbin indicated that he would ask senators to pitch bills that they’ve already introduced that have bipartisan support. “We want to sit at a table and ask members who have immigration, bipartisan immigration bills, to come and propose those bills to us and see if we can build a 60-vote plus margin for a group of bills. It may not be possible, but I think it is,” Durbin told The Hill. Durbin’s staff is in touch with Sen. John Cornyn’s (R-Texas) staff. Durbin also pointed to legislation from Sen. Tammy Duckworth (D-Ill.) to prevent the deportation of undocumented immigrants who served honorably in the military. Sens. Michael Bennet (D-Colo.) and Mike Crapo (R-Idaho) are also trying to get a deal related to agricultural workers, a key area for immigration groups. Meanwhile, Sen. Thom Tillis (R-N.C.), who is expected to be involved in Durbin’s group, pointed to a broader scope that included immigration reform, overhauling the asylum process, Deferred Action for Childhood Arrivals (DACA) and Title 42, the Trump-era program that allows for the rapid expulsion of migrants at the border and blocks them from seeking asylum. Potentially adding pressure for lawmakers is the threat that federal courts strike down or curtail DACA, which allows undocumented immigrants brought into the country as children to stay as long as they meet certain school and work requirements, amid a fight in the Fifth Circuit. And advocates are hoping that the potential of a GOP-controlled House, and the looming retirement of pragmatic-minded Senate Republicans, also helps drive negotiations, even if it’s in the lame duck. “I think a Republican-controlled House, with a Jim Jordan as chair of House Judiciary rules out moving immigration next year,” said Ali Noorani, the president and CEO of the National Immigration Forum. Noorani added that, “We’re pretty clear-eyed about this and trying to look at this as the balance of the calendar year.” Kerri Talbot, the deputy director of the Immigration Hub, acknowledged that “it’s always hard to do stuff right before a midterm election, or a regular election” but pointed to the post-election session as “a possibility for really a more serious conversation.” Any discussions in the Senate are still in the early stages but advocates float that a deal, at minimum, could pair a DACA fix, agricultural workers and temporary protected status (TPS) holders with some border security. But there are plenty of sticking points—namely election year jockeying and increasingly entrenched divisions on immigration. “I think with DREAM it’s challenging because Republicans are holding it up for asylum reform and so then it becomes very challenging to get a consensus,” Talbot said, referring to the DREAM Act. The effort also dovetails with an escalating and complicated fight over immigration and Title 42 that has divided Democrats. Title 42 is a law that the administration used to block asylum-seekers from court hearings during the pandemic. Republicans have ramped up their attacks over the administration’s decision to lift Title 42, effective May 23, as they seize on immigration and the border as an effective tool to use in key Senate races. Democrats “got to this point by aiding and abetting Biden’s radical immigration agenda. And Biden is repaying them for their support by telling them to kick rocks,” the Senate GOP arm tweeted about the Democratic divisions over Title 42. To get an immigration deal through the Senate, an agreement would need at least 10 GOP senators assuming all 50 members of the Democratic voted for it. Any attempt by Republicans to negotiate with Democrats on an immigration deal would be all but guaranteed to spark attacks from within their own party, including potentially from Trump. “The politics have changed on immigration within the Republican Party to where they are much more unified around being the anti-immigration party than they previously were,” Rivlin said. There also could be a balancing act for Democrats. Several moderates, who are up for re-election in November, have been pushing for Biden to be more assertive on the border as they face GOP attacks on immigration. “It’s complicated by what’s going on at the southern border; if that gets progressively worse, it will soak up all the energy on immigration,” Durbin said, shortly before the Senate’s two-week break. The division between Biden and Democrats, as well the attacks from Republicans, have only intensified since then. That’s also sparked pushback from some progressive and outside groups over frustration that members of their own party are mirroring GOP language. Any immigration agreement would have to have enough border security to pacify moderates, who could be wary of getting attacked by Republicans, without losing the rest of the caucus. Underscoring the complicated political calculus for Democrats up in November, a Politico/Morning Consult poll released earlier this month found that while only 26 percent of Democrats opposed Biden’s Title 42 decision, 52 percent of Independents opposed it. “If it doesn’t have enough at the border you lose Hassan, Sinema,” Noorani said, referring to Sens. Kyrsten Sinema (D-Ariz.) and Maggie Hassan (D-N.H.). “But,” he added, “if it has too much border enforcement but not enough in terms of protections, it’s going to be really hard to hold onto the folks on the left side of the caucus.” Visit us for more information at: http://www.beverlyhillsimmigrationlaw.com/index.html

Biden announces new program for Ukrainian refugees to enter US on humanitarian grounds

(CNN)President Joe Biden on Thursday announced a new program called "Uniting for Ukraine" that will provide a streamlined process for Ukrainian refugees seeking to come to the United States. The move comes come nearly one month after Biden pledged to admit up to 100,000 Ukrainians fleeing Russia's invasion and is designed to more quickly get Ukrainians interested in coming to the US. "This new humanitarian parole program will complement the existing legal pathways available to Ukrainians, including immigrant visas and refugee processing. It will provide an expedient channel for secure legal migration from Europe to the United States for Ukrainians who have a US sponsor, such as a family or an NGO," the President announced Thursday while delivering an update on Ukraine and Russia. Biden continued, "This program will be fast. It will be streamlined. And it will ensure the United States honors its commitment to go to the people of Ukraine and (they) need not go through our southern border." The President on Thursday also announced another $800 million package of weapons and other aid would be sent to Ukraine in the administration's latest efforts to reinforce the country's forces battling against Russia's invasion. CNN reported earlier Thursday that the humanitarian parole program will require Ukrainians seeking entry to the US to be sponsored by a US citizen or individual, which would include resettlement organizations and non-profit organizations. The Ukrainian applicants will need to undergo rigorous security vetting and checks, including biographic and biometric screening, and complete vaccinations and other public health requirements, including receiving the Covid-19 vaccine, to be eligible. Ukrainians must have also been residents in Ukraine as of February 11. Sponsors would need to pass security background checks of their own as well as declare financial support. There is not a limit on the number of individuals that a person or group can sponsor, but administration officials noted they'll be evaluating their means and ability to support Ukrainians. The Department of Homeland Security will administer the program. "DHS will continue to provide relief to the Ukrainian people, while supporting our European allies who have shouldered so much as the result of Russia's brutal invasion of Ukraine," Homeland Security Secretary Alejandro Mayorkas said in a statement. RELATED: In pictures: See what life is like for Ukrainians waiting at the US-Mexico border Through this process, Ukrainian applicants would be allowed to travel to the US and be considered for humanitarian parole on a case-by-case basis for up to two years. If accepted, the individuals would be eligible for work authorization. Individuals can begin submitting applications through an online portal on April 25. The limited pathways to the US so far have resulted in hundreds of Ukrainians going to Mexico, where it's easier to obtain a visa, to then try to enter the US through land ports of entry. More than 5,000 Ukrainians attempted to enter the US in March, including more than 3,200 at the southern border with Mexico, according to US Customs and Border Protection data. A Homeland Security official stressed Thursday that Ukrainians shouldn't travel to Mexico to enter the US. "Following the launch of Uniting for Ukraine, Ukrainians who present at land U.S. ports of entry without a valid visa or without pre-authorization to travel to the United States through Uniting for Ukraine will be denied entry and referred to apply through this program," according to DHS. In addition to the humanitarian parole program, the State Department is working to expand its Refugee Admissions Program operations in Europe, with the goal of providing eligible individuals with better access to the Lautenberg program, an initiative aimed at helping those fleeing religious persecution from the Soviet Union, as well as stepping up referral mechanisms for Ukrainians seeking permanent resettlement. More than 5 million people have fled Ukraine since Russia's invasion began in late February, the United Nations High Commissioner for Refugees said Wednesday. Visit us for more information: http://www.beverlyhillsimmigrationlaw.com/index.html