Courts take the lead role as U.S. immigration policy remains in limbo
Children play in the makeshift shelter camps for Central American migrants waiting for U.S. authorities to allow them to enter to begin their process of humanitarian asylum in this country in Tijuana, Mexico, on March 26. (Francisco Vega | Getty Images)
WASHINGTON – Eighteen months into the Biden administration, immigration reform has stalled despite campaign promises to reform the system, with the most recent movement on immigration policy doled out by the U.S. Supreme Court and in lower federal courts.
The Supreme Court ruled in favor of the Biden administration in a 5-4 decision on June 30 that the U.S. Department of Homeland Security did not violate federal immigration law when it moved to end the Trump administration’s “Remain in Mexico” policy, known as the Migrant Protection Protocols. It was a rare win for President Joe Biden amid a string of defeats at the end of the court’s term, including on abortion and climate change.
DHS Secretary Alejandro Mayorkas said during an interview with ABC News on Sunday that the agency is planning to end the Trump-era program that forced migrants seeking asylum to remain in Mexico while their cases were being processed through the U.S. immigration court system. But he said it will take time.
“We need to wait until the Supreme Court’s decision is actually communicated to the lower court, to the federal District Court and the Northern District of Texas, and, once that occurs, the District Court should lift its injunction that is preventing us from ending the program,” Mayorkas said.
There are about 30,000 pending MPP cases, according to tracking by Syracuse University.
Sen. Marco Rubio, a Florida Republican, criticized the Biden administration for moving to end the “Remain in Mexico” policy.
“This decision will send yet another signal to the trafficking networks and cartels that America’s border is wide open,” Rubio said in a statement. “President Biden’s reckless rhetoric and actions are encouraging illegal immigration and hurting our country.”
But Sen. Ben Ray Luján, a New Mexico Democrat, said in a statement that the end of the program “is the first step toward remedying years of humanitarian injustice.”
“This dangerous, xenophobic policy established by the Trump administration has forced tens of thousands of vulnerable children, families, and other asylum seekers into unsafe conditions before their asylum requests can even be heard,” he said.
Luján added that he is continuing to work with his colleagues in the Senate “to continue my career-long push to fix our broken immigration system.”
Noting the horrifying discovery of 53 migrants who died in an abandoned tractor trailer in Texas while attempting to cross into the United States, Mayorkas called for Congress to pass immigration reform. He also defended the administration messaging on deterring migrants from crossing the U.S. border. Republicans have repeatedly attacked Biden on border policy.
“Because the border has been a challenge for decades, ultimately Congress must pass legislation to once and for all fix our broken immigration system,” Mayorkas said during the ABC interview.
Republican Texas Gov. Greg Abbott was quick to blame Biden for the deaths of the migrants found in the tractor trailer.
“These deaths are on Biden,” Abbott wrote on Twitter. “They are a result of his deadly open border policies.”
While aboard Air Force One, White House Press Secretary Karine Jean-Pierre told reporters that “the fact of the matter is the border is closed, which is in part why you see people trying to make this dangerous journey using smuggling networks.”
Dreamers’ fate in the courts
Without congressional action, the nearly 825,000 undocumented people covered by the Deferred Action for Childhood Arrivals program, known as Dreamers, remain in limbo as oral arguments took place in a lower court in Louisiana on Wednesday.
The program allows children who were brought to the country illegally to obtain documentation for work and allows them to remain in the country.
Texas – in its lawsuit originally with Alabama, Arkansas, Louisiana, Nebraska, South Carolina and West Virginia — argued that DACA placed an undue burden on the states and that the Obama administration didn’t follow proper procedures when implementing the program.
The program was meant to be a temporary fix, until a path to citizenship for those children, who are now adults, could be put in place by Congress, but in June the program entered its 10th year in place.
House Speaker Nancy Pelosi, a California Democrat, said Democrats need to be prepared to pass legislation creating a pathway to citizenship should they win the DACA case in the federal appeals court in New Orleans.
“We need to be prepared to make respect for our Dreamers the law of the land,” she said in a statement.
In Biden’s State of the Union Address earlier this year, he said that the country needs to “provide a pathway to citizenship for Dreamers,” and called on Congress to pass a bill, so he could sign it into law.
But any immigration reform has failed to pass Congress and remains largely stuck.
Meanwhile, the Biden administration has been blocked by conservative judges, including on an attempt to end the controversial Title 42 policy. That Trump-era policy allows the U.S. to expel migrants making asylum claims during a period of health crisis, such as the coronavirus pandemic.
“We shouldn’t be using a public health law to enforce immigration law,” the president of the American Immigration Lawyers Association, Jeremy McKinney, said. “Public health law should be driven by science and not election year politics, especially coming from the same ilk that has opposed every public health measure since COVID started.”
The Biden administration moved to scrap the program, but after Texas sued, a Louisiana district court issued a nationwide preliminary injunction and ruled that the White House had to keep the policy in place. The Justice Department has appealed.
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