Liberals and Conservatives are Suing to Remove Biden’s New Border Policy – For Very Different Reasons

Immigration advocates said President Biden’s new border policy is a draconian restriction that “will effectively eliminate asylum” for most migrants. Republican officials in Texas, however, said the opposite was true, warning that the regulation would trigger an “influx of migrants” with unverified asylum claims.

Both groups were outlining the same Biden administration policy in separate lawsuits, but their motives for contesting it were completely different.

Enacted earlier this month, Biden administration rule disqualifies migrants from asylum if they have not first sought refuge in a third country before reaching the southern US border. Those who cross the border illegally and fail to prove they deserve an exemption from the rule face speedy deportation and a five-year ban from the US.

Rule is the centerpiece of government broader effort to reduce illegal border crossings, which have recently reached record levels. It penalizes those who enter the country without a permit, while expanding opportunities for migrants to legally enter the US.

In its filing earlier this month, the American Civil Liberties Union (ACLU) and other advocacy groups said the Biden administration, as well as two Trump administrations asylum restrictions blocked in federal court, violates laws passed by Congress in 1980 to protect refugees fleeing persecution.

In a separate lawsuit filed this week, Texas Republican Attorney General Ken Paxton also argued that the regulation was illegal, but he focused his criticism on a provision instructing migrants to wait in Mexico until they secure a time slot through a phone app to enter the US. at an official border crossing. Those who enter the US with one of the approximately 1,000 inquiries distributed each day are not disqualified from asylum.

The lawsuits by the strange bedfellows, both of whom seek to block the asylum restriction in its entirety, could jeopardize Biden’s strategy to manage migration to the US southern border, where migrants come in greater numbers and from more countries than ever amid mass displacement in Latin America and the Caribbean. Federal judges in Oakland and Del Rio, Texas, could rule on those cases later this year, starting a high-stakes legal battle that could reach the Supreme Court.

Migrant crossings at the southern border increase as Title 42 policy expires
Immigrants seeking asylum in the US, who are trapped in a makeshift camp between the US-Mexico border walls, look through the border wall on May 13, 2023 in San Diego, California.

/ Getty Images

But beyond their legal and practical implications, the lawsuits illustrate the thorny political situation the Biden administration finds itself in on border policy.

Progressive advocates say Biden has been too tough on migrants and too reliant on deterrence policies pursued by former President Donald Trump. Republicans, meanwhile, continue to argue that the current migration crisis is caused by Mr. Biden, accusing his administration of negligence in border enforcement.

The lawsuits also highlight the dangers of formulating federal immigration policy amid decades of congressional inaction on the issue. Like his predecessors, Biden has exercised his executive authority broadly to enact key immigration policies, at the southern border and inland. And like the unilateral changes of his predecessors, Biden’s policy agenda has been challenged and at times derailed by lawsuits.

“Before it gets to the point where another government comes in, a court will strike out a rule or policy with an injunction, and it must be changed immediately,” said Theresa Cardinal Brown, a former US immigration official under former Presidents George W. Bush and Barack Obama. “It’s a whiplash effect on politics.”

A lawsuit in Texas, for example, barred the Obama administration from granting work permits and deportation protections to unauthorized immigrants whose children were US citizens or US permanent residents. The Trump administration’s numerous asylum restrictions, family separation policy for migrants and efforts to curb legal immigration have met with dozens of often successful legal challenges from Democratic-led states and advocacy groups like the ACLU.

That trend has continued, if not intensified, under Biden. During his first two years in office, Texas and other Republican-led states convinced judges to block a 100-day moratorium on most deportations, rules limiting Immigration and Customs Enforcement (ICE) arrests and ending a policy of the Trump era known as “Stay in Mexico” which forced asylum seekers to wait for their trial dates outside the US

Republican state officials extended the expiration of the Title 42 public health order — which allowed border agents to expel migrants without asylum exams — by one year. The pandemic rule only ended this month because the end of the COVID-19 national emergency nullified legal challenges.

Migrants wait to cross the banks of the Rio Grande into the US, seen from Matamoros, Tamaulupas state, Mexico, on May 9, 2023.


Most recently, a federal judge granted Florida’s request to halt a Biden administration’s migrant release policy that was intended to mitigate overcrowding inside Border Patrol facilities. Another federal judge in Texas is also expected to rule soon on a request by Republican-led states to force the Biden administration to end the Deferred Action for Childhood Arrivals (DACA) program for 600,000 “Dreamer” immigrants.

Other cases remain unresolved, including Texas’ attempt to close a popular show which allows up to 30,000 Cubans, Haitians, Nicaraguans and Venezuelans with US-based financial sponsors to come to the country legally each month.

Cardinal Brown, now a senior adviser to the Bipartisan Policy Center, said Congress’ failure or reluctance to significantly change immigration law since the 1990s has led states and groups that disagree with the government in power to engage in political struggles in the federal court. system.

“The main reason we are seeing these particular processes from the states is a political and political difference of opinion,” Cardinal Brown said. “The judiciary should not be a policy-making body, and we are asking it to essentially make policy.”

At a recent briefing, Blas Nuñez Neto, the Department of Homeland Security’s top immigration and border policy officer, said the lawsuits “clearly demonstrate how fundamentally broken our immigration system is.”

The government, argued Nuñez Neto, is employing “innovative” executive actions to prevent illegal border crossings, which dropped sharply after Title 42 expired on May 11. lawsuits prevail, Nuñez Neto turned to Congress.

“At the end of the day, we are certain that there is no lasting solution here that does not involve the US Congress,” he said.

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