WASHINGTON – President Joe Biden hopes to broker a solution to the migrant crisis when he meets with his Mexican and Canadian counterparts this week, but his efforts may be limited by the fact that much of his immigration agenda remains tied up in court.
The Supreme Court recently paused the administration’s ability to end the pandemic-era Title 42 policy, which allows for the swift removal of some migrants. A federal court in Texas last month once again blocked Biden from shutting down the controversial “Remain in Mexico” policy. And experts predict the president’s latest proposal, to expedite the removal of some migrants, will immediately wind up in federal court – just as it did when President Donald Trump tried a similar idea four years ago.
Taken together, Biden heads into the summit with Mexican President Andrés Manuel López Obrador and Canadian Prime Minister Justin Trudeau with not only a logistical nightmare unfolding on the southern border but a legal morass developing in court.
Agreement:Biden says Mexico to step with border security, plans trip to border
Title 42:Supreme Court order keeps Title 42 expulsions in place for now
“The Biden administration promised a humane asylum system but thus far its border policies have too closely resembled those of the Trump administration’s,” said Lee Gelernt, an American Civil Liberties Union ACLU who was the lead counsel in previous challenges to similar policies. “If the Biden transit ban has only minor changes from the Trump ban, we will immediately be back in court.”
Biden latest immigration moves
- Expedited removal: Biden announced Thursday that officials will attempt to expedite removal of certain migrants moving through Mexico who don’t first seek asylum in Mexico – reviving a Trump-era idea. One benefit, from the administration’s perspective, is that the move doesn’t rely on the likely short-lived Title 42 program. A downside: It will almost certainly prompt a lawsuit that will tie the policy up for months, if not longer.
- Pandemic emergency? Meanwhile, the administration will expand its use of Title 42 to hasten the removal of Cubans, Haitians and Nicaraguans – migrants who were initially exempt from the COVID-19 emergency policy that permits the United States to deny asylum hearings at the border that are normally required by law. Ironically, critics note, the administration is expanding its use of Title 42 at the exact same time it is arguing at the Supreme Court that it wants to eliminate the program now that COVID-19 is receding.
- On the docket: The Supreme Court is already considering two major immigration policies this year, leaving their future unclear. In one case, Biden is fending off a challenge from conservative states that want to keep Title 42 in place. The justices will hear arguments in that case March 1. In another appeal, the court is considering Biden’s effort to prioritize certain immigrants in the country illegally for deportation – the outcome of which the government warned could be “incredibly destabilizing.”
Pandemic recedes as Title 42 expands
Title 42 permits Customs and Border Protection agents to remove migrants without the usual review of their asylum claims to prevent the spread of COVID-19. Invoked by the Trump administration in 2020, the authority has been used more than 2.4 million times.
Biden announced in April that he intended to wind down Title 42 because vaccines and therapeutics had eased the impact of the virus. Separately, a federal court ruled in November that the way the program was created in the first place violated the law. A group of conservative states challenged that ruling and asked to intervene in the case to defend the policy. That’s what the Supreme Court will consider when it hears arguments in the case in March: Whether the states may jump in to defend the policy.
As part of that case, the administration has told the Supreme Court that Title 42 is no longer needed. The government recognizes “that the end of the Title 42 orders will likely lead to disruption and a temporary increase in unlawful border crossings,” the administration told the high court in a brief last month. “But the solution to that immigration problem cannot be to extend indefinitely a public-health measure that all now acknowledge has outlived its public-health justification.”
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Arguments:Supreme Court grapples with challenge to Biden immigration policy
But under the new policies announced Thursday, the administration would use Title 42 to more rapidly expel migrants from other countries. On the other hand, the administration would open a new pathway to admit up to 30,000 people each month from those countries who have a sponsor and pass background checks. The administration set up a similar effort for for Venezuelan nationals in October that has reduced the number of encounters with Venezuelans attempting to cross.
That idea has drawn sharp criticism from conservatives.
“There’ll be significant doubt about whether this plan he’s unveiled is legal,” said Christopher Hajec, director of litigation for the Immigration Reform Law Institute. “It seems like a clear abuse of the parole authority.”
Speeding up removals
Separately, the Biden administration is creating a new rule that would allow agents to expedite the removal of migrants who travel through Mexico but did not claim asylum there – a policy similar to one embraced by the Trump administration in 2019.
That rule wound up in federal court and was blocked by the U.S. Court of Appeals for the 9th Circuit. But the Supreme Court reversed course on its emergency docket, allowing the Trump era rule to go into effect. It’s not yet clear if the Biden administration can craft the new rule in a way that can withstand legal challenge but also be effective.
“The devil will be in the details: How will the administration define a credible fear? How much time will people have to prepare for their hearing?” said Stephen Yale-Loehr, a Cornell Law School professor who specializes in immigration. “If only a few days or weeks, few people will be able to gather their evidence or find an attorney.”
So what’s next?
What’s next, both sides of the immigration debate agree, are additional lawsuits on top of those already pending at the Supreme Court. And courts can – and frequently do – put administration policies on hold while they consider the legal questions involved.
And the threat of those lawsuits could complicate Biden’s ability to secure concessions from his counterparts from Mexico and Canada this week as they meet to discuss immigration and other issues.
“Organizations have sued to stop administrative changes on both substantive and procedural grounds,” Yale-Loehr said. “Groups can usually find sympathetic judges to (halt) an administration’s immigration policy change.”
Dig deeper:
Big picture:Biden’s ability to bypass Congress faces ‘major’ legal hurdle
Deport:Supreme Court returns to immigration in test of Biden’s power
Vote:Republicans, Democrats courted the Latino vote in 2022. Here’s what happened.
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