Biden’s Immigration Plan Lays Out a Tougher Border, New Legal Pathway for Some Migrants

“The framework will triple refugee resettlement from Latin America and the Caribbean in 2023 and 2024, for an annual cap of 20,000. Each month, up to 30,000 migrants combined from Venezuela, Nicaragua, Haiti, and Cuba may come to live and work in the U.S. on a two-year status if they secure an American sponsor and pass background checks.

Meanwhile, the White House says “individuals who irregularly cross the Panama, Mexico, or U.S. border after the date of this announcement will be ineligible for the parole process and will be subject to expulsion to Mexico,” which will accept up to 30,000 migrants monthly from Venezuela, Nicaragua, Haiti, and Cuba who have been expelled. Mexico will do so under an expansion of the pandemic-era Title 42 order, which allows for the immediate expulsion of border crossers. Previously, Mexico only accepted Mexicans, Guatemalans, Hondurans, and Salvadorans removed under Title 42. (It recently began accepting expelled Venezuelans as well.) Unauthorized migrants “will be increasingly subject to expedited removal to their country of origin and subject to a five-year ban on reentry,” according to the White House.

Certain aspects of the framework will likely help reduce the number of migrants arriving at the U.S.-Mexico border, which has been a great challenge for the Biden administration so far. Under the new parole pathway, migrants can begin the process to secure legal passage to the U.S. from their home countries rather than doing so through an asylum claim (which can only be initiated at a port of entry or on U.S. soil). This could help save them a dangerous northward journey and reduce overcrowding at the border.”

“The pathway for Nicaraguans, Cubans, and Haitians mirrors similar programs established for Ukrainians and Venezuelans last year. Those programs helped reduce unlawful crossings among those groups, says Bier: “The Ukrainian parole program eliminated migration to the U.S.-Mexico border by Ukrainians. Venezuela’s program has already turned migration to be mostly legal.” Last summer, Customs and Border Protection reopened ports of entry to Haitians, which “basically ended illegal immigration by Haitians,” Bier explains.”

Cubans and Haitians Are Fleeing to the U.S. in Staggering Numbers

“Border crossings by Cuban migrants have reached an all-time high: Over 220,000 Cubans attempted to cross the southern border illegally from December 2021 to December 2022, according to data from U.S. Customs and Border Protection. Migrants are also making their way to the U.S. by sea. Since October, the Coast Guard has intercepted 3,700 Cubans at sea, already more than half than were intercepted in the previous 11 months.
For over six years, Cubans on the island could not apply for asylum or exit visas at the U.S. embassy in Havana after the Trump administration closed the embassy’s visa operations. This forced Cubans to travel to Guyana, one of the few countries Cubans are allowed to visit, to apply for asylum, an expensive and inaccessible process for many on the island. Cubans would no longer be automatically allowed to stay and pursue residency if they reached U.S. territory, as was the case before the Obama administration ended the “Wet-Foot, Dry-Foot” policy in 2017. So the suspension of visa services in Havana drove many to risk the voyage across the Straits of Florida or through Central America to the southern border, usually with the help of smugglers.

An increased number of Haitians have also fled their country, attempting to cross the U.S.-Mexico border amid ongoing gang violence, disease outbreaks, and political instability that has worsened in recent months. The limited opportunities for requesting asylum beyond the border and new restrictions on Haitian immigration in countries like Brazil and Chile have prompted many to take the risks as well.”

“In response to this recent increase in migrant arrivals, Biden announced..that Cubans, Haitians, and Nicaraguans would no longer be exempted from expulsion under Title 42. Up to 30,000 unauthorized migrants from these countries will be sent back to Mexico every month once the policy takes effect. Asylum claims at the southern border will also be limited.

The administration also announced new pathways for asylum, allowing Cuban, Haitian, and Nicaraguan migrants to apply for asylum if they promise to work for two years and have a U.S.-based sponsor who can support them during that period, claiming it will provide for “orderly migration” for migrants seeking to come to the United States. The State Department has reopened visa services in Havana to help facilitate this new asylum process.”

“Regardless of the changes and the dangers that accompany the treacherous journey, many of the migrants remain undeterred in their mission to reach the United States.

“I would prefer to die to reach my dream and help my family,” Jeiler del Toro Diaz, a Cuban migrant who came ashore in Key Largo on Tuesday, told The Miami Herald. “The situation in Cuba is not very good.””

From Texas border, New York mayor vows to pressure U.S. government over migrants

“The city spent $366 million on services for asylum seekers last year, and Adams expects that sum to rise to $2 billion through June. Thus far, New York City has received just $8 million from the Federal Emergency Management Agency and $2 million from Senate Majority Leader Chuck Schumer.
“This is a national crisis. FEMA deals with national crises. FEMA must step up, and there should be one coordinator to coordinate everything that is happening dealing with migrants and asylum seekers in our country,” Adams said.”

If You Oppose COVID Emergency Powers, You Should Oppose Title 42 Expulsions

“Gorsuch didn’t say that there aren’t problems at the border or that the transition from Title 42 wouldn’t prove challenging. “But the current border crisis is not a COVID crisis,” he wrote. “And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.”

Policy makers would be wise to scrap the pandemic-era Title 42 order. It’s accomplished the opposite of what proponents promised, leading to more frequent and less predictable migrant inflows. Since a Title 42 expulsion carries no reentry penalty, repeat crossings roughly quadrupled in 2021 compared to their 2019 rate. Smugglers have taken advantage of repeat crossings by charging migrants more for the inflated number of northward journeys. With asylum largely inaccessible at ports of entry, migrants desperate to enter the country have attempted to cross the border in less surveilled, more dangerous terrain. These things have all contributed to chaotic scenes at the border, providing fodder for immigration restrictionists.”

Don’t Blame Migrants and ‘Open Borders’ for Fentanyl Entering the Country

“it’s inaccurate to say that undocumented immigrants crossing an open border are chiefly responsible for fentanyl arriving at the country’s doors. In reality, U.S. citizens carrying the drug through legal ports of entry are primarily to blame.”

Title 42 Expulsions Made the Border Less Secure

“Customs and Border Protection (CBP) invoked Title 42 in nearly 1.8 million migrant encounters between April 2020 and March 2022, amounting to 61 percent of total encounters. Title 42 allowed immediate expulsion and barred affected migrants from applying for asylum.

Although immigration opponents pointed to those numbers as proof of the policy’s necessity, the figures were inflated. Because Title 42 is a health measure, immigration officials could not impose reentry penalties on expelled migrants. With no disincentive for reentry, the share of encounters that involved repeat crossers jumped to 27 percent in 2021, nearly four times higher than in 2019.

Excluding repeat crossings, the number of border apprehensions resembled pre-pandemic levels. Border hard-liners ignored that point, pointing to headlines announcing record CBP apprehensions. Meanwhile, most would-be migrants were unable to request asylum at a port of entry, opting instead to congregate at the border. That was the natural result of shutting down more orderly immigration channels.”

” The Title 42 order has led to more frequent and less predictable migrant inflows. With proper planning, its phaseout could result in more efficient processing at the border. Restoring the asylum-seeking process, coupled with expanding opportunities for temporary work visas and economic migration, could help prevent both harm to migrants and chaotic scenes at the border.”

It’s a Bad Year for Criminal Justice Reform at the Supreme Court

“The U.S. Supreme Court’s 2021-2022 term is not yet over and it is already going down in the books as a terrible term for criminal justice reform. A pair of recent dissents by Justice Sonia Sotomayor spotlights the sorry state of affairs.

First, in Shinn v. Ramirez, the Court held that a death row inmate who received ineffective state-appointed counsel at both trial and postconviction state court proceedings is now barred from presenting new exculpatory evidence—evidence of actual innocence—in federal court. “Innocence isn’t enough,” declared the state attorney during oral arguments, insisting that the federal courts must defer to the flawed state proceedings.

“This decision is perverse,” wrote Sotomayor in dissent. “It is illogical.” She is right on both counts. As The Washington Post’s Radley Balko has detailed, “every court to consider the actual merits of [death row inmate] Barry Jones’s innocence claim has ruled that he never should have been convicted of murder. And every court to rule against Jones did so for procedural reasons without considering the new evidence. If Jones is executed, it will not be because there is overwhelming evidence of his guilt. It will be because of a technicality.””

“The second notable Sotomayor dissent came in Egbert v. Boule, a ruling which shielded a border patrol agent from being sued in federal court for his alleged violations of the First and Fourth Amendments. Among its many sins, this outcome made a mockery of the Court’s 1971 decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, which said that federal officers may indeed be sued in federal court for alleged Fourth Amendment violations.

“Bivens itself involved a U.S. citizen bringing a Fourth Amendment claim against individual, rank-and-file federal law enforcement officers who allegedly violated his constitutional rights within the United States by entering his property without a warrant and using excessive force. Those are precisely the facts of Boule’s complaint,” wrote Sotomayor in dissent.

She is again right on all counts. Innkeeper Robert Boule alleged that Border Patrol Agent Erik Egbert assaulted him on his own property after Boule asked Egbert to leave. That Fourth Amendment complaint does not differ in any meaningful way from the Fourth Amendment complaint at issue in Bivens.

Thanks to the Supreme Court’s flawed judgment, Sotomayor observed, Customs and Border Protection (CBP) “agents are now absolutely immunized from liability in any Bivens action for damages, no matter how egregious the misconduct or resultant injury. That will preclude redress under Bivens for injuries resulting from constitutional violations by CBP’s nearly 20,000 Border Patrol agents, including those engaged in ordinary law enforcement activities, like traffic stops, far removed from the border.” So much for the Fourth Amendment when a federal officer is involved.”

Texas Gov. Abbott’s border inspections prompt Mexico to move lucrative trade link to New Mexico

“Trucks were re-routed through Santa Teresa when Abbott’s inspections snarled commercial traffic at Texas border crossings, and now Mexico has decided to move a long-planned trade railway connection worth billions of dollars from Texas to the New Mexico crossing, The Dallas Morning News reported Sunday. “We’re now not going to use Texas,” Mexican Economy Minister Tatiana Clouthier said. “We can’t leave all the eggs in one basket and be hostages to someone who wants to use trade as a political tool.””

Biden Administration Will Lift Title 42 Order Used To Expel Migrants

“Under the Public Health Services Act of 1944, codified in Title 42 of the U.S. Code, federal health officials may issue orders intended to curb the cross-border spread of diseases. Rarely invoked before the pandemic, Trump administration officials looked to Title 42 in late March 2020 as a way to stop migrants from crossing U.S. land borders. Would-be migrants could no longer cross into the United States from Canada and Mexico after the CDC’s Title 42 order, ostensibly because they posed contagion risks. The order has been used almost exclusively to expel migrants at the southern border, and CBP officials have carried out 1.7 million expulsions under its authority.

Its implementation has proven to be largely counterproductive and harmful to migrants. Those expelled under Title 42 faced nearly 10,000 incidents of kidnapping, torture, rape, and other violence after being sent to dangerous border towns in Mexico, according to Human Rights First. What’s more, because Title 42 does not penalize repeat crossings, the recidivism rate rose and the total number of CBP apprehensions spiked. This led to inflated reports of chaos and unprecedented migration at the U.S.-Mexico boundary, which only helped fuel the false argument that President Joe Biden is overseeing an open southern border.

Immigration advocates have long criticized the public health order for the barriers it poses to asylum seekers. Under U.S. immigration law, migrants are legally permitted to seek asylum—a process they must begin either on American soil or at a port of entry. An immediate expulsion under Title 42 means that migrants can’t present their cases for asylum, risking a return to the dangerous conditions many of them have fled.

From the very beginning, public health officials have questioned the efficacy of Title 42 in curbing the spread of COVID-19, noting that the virus was already spreading in American communities and that migrants posed a comparatively minor risk. The CDC’s director of Global Migration and Quarantine, Martin Cetron, refused to support the Trump administration’s initial order. Lawyers at the Department of Health and Human Services and CBP pressured the CDC to issue the order, but the agency refused until former Vice President Mike Pence ordered the borders closed. Since that initial scuffle, more than three-quarters of Americans have received at least one COVID-19 vaccine dose, making the health order’s stated justification even more tenuous.”