As the Biden administration is touting a short-term drop of more than 70% in encounters at the southern border in the wake of the expiration of the Title 42 public health order, it is facing mounting legal battles that could — and already have — torpedoed some key policies it has put in place.
“We have seen … a significant decrease in encounters at the border, more than 70% reduction since the lifting of Title 42 on May 11th,” DHS official Blas Nunez-Neto told reporters at the border this week.
Nunez-Neto also outlined how the administration has expanded what it calls lawful pathways into the U.S., including by allowing more than 1,000 migrants a day into the U.S. who have made an application on the CBP One app.
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“We’ve also seen how the consequences we are delivering as part of our comprehensive effort to manage flows at the border are working,” he said.
Staring down a third year of a historic crisis at the southern border, which critics have tied to the administration’s “catch-and-release” policies and reduced interior enforcement, the administration put a number of additional border policies in place to prevent an additional surge once the Title 42 public health order ended on May 11.
A Customs and Border Protection officer (L) keeps watch as immigrants line up to be transported from a makeshift camp between border walls between the U.S. and Mexico on May 13, 2023, in San Diego, California. (Mario Tama/Getty Images)
At the center of that strategy is an asylum the “Circumvention of Lawful Pathways” rule, implemented on May 11, which presumes migrants to be ineligible for asylum if they have entered the U.S. illegally and have failed to claim asylum in a country through which they have already traveled.
While that does not necessarily mean they won’t be released into the U.S., in theory it would block most migrants from a valid asylum claim unless they take advantage of pathways the administration has set up. The most prominent of those pathways is the use of the CBP One app to book an appointment at a port of entry with a CBP official.
Meanwhile, the “presumption of ineligibility” (the administration has denied claims by left-wing activists that it amounts to a “ban”) can be rebutted if a migrant can show that the app was not working or that they are in acute danger. It does not apply to unaccompanied migrant children.
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Left-wing activists led by the American Civil Liberties Union immediately sued, arguing that it is an illegal block on foreign nationals’ right to claim asylum in the U.S.
But in recent days, the rule has also seen challenges from GOP-led states. The first came from Texas, which said that neither the CBP One app nor officials ask whether the migrants they are letting in are claiming asylum. Texas’ complaint claims that the administration is encouraging migrants to cross the border “without establishing that they meet some exception from removal or have a legal basis to remain in the country.”
This week, a new 18-state lawsuit challenged the rule more broadly, calling it a “smoke screen” that essentially recategorizes otherwise illegal crossings as lawful.
“The Defendants claim that the Circumvention Rule will deter illegal border crossings, decrease the number of new unlawful aliens in the United States, and reduce reliance on human smuggling networks. The truth, however, is that the Circumvention Rule is some combination of a half measure and a smoke screen,” the states, led by Indiana, argue. “It is riddled with exceptions, and it is part of the Biden Administration’s broader effort to obfuscate the true situation at the Southwest Border.”
Should any of the three lawsuits, filed in different courts across the county, be successful, it could dramatically change how the Biden administration exercises its powers at the border.
Separately, the administration has already had a migrant release policy frozen that it put in place the day before Title 42 ended. That policy, called “parole with conditions,” saw migrants being released into the interior without court dates due to overcrowding. Nearly 9,000 migrants were released while the policy was in place.
A federal judge shut the policy down with just hours before Title 42 ended. He agreed with arguments from Florida Attorney General Ashley Moody that the policy was “materially identical” to one he had blocked in March.
US Homeland Security Secretary Alejandro Mayorkas speaks during the daily press briefing in the Brady Press Briefing Room of the White House in Washington, D.C., on May 11, 2023. Migrants entering the U.S. without documents as pandemic-era controls lift May 11 face long-term bans and possible prosecution, Homeland Security Secretary Alejandro Mayorka warned. “Our borders are not open,” Mayorkas said, hours before the U.S. implements a tough new immigration policy. (Photo by Brendan SMIALOWSKI / AFP) (Photo by BRENDAN SMIALOWSKI/AFP via Getty Images) (Brendan SMIALOWSKI / AFP) (Photo by BRENDAN SMIALOWSKI/AFP via Getty Images)
The administration decried the block as “sabotage” and warned that it could lead to severe overcrowding at CBP stations. That has not yet happened, due to the drop in migrant encounters at the border that followed.
However, this week Florida expanded its challenge, arguing that a “streamlined” policy of releasing migrants with court dates (Notices to appear) and on their own recognizance (OR) should also be blocked.
“Biden’s will to violate public-safety immigration laws and release massive amounts of illegal immigrants into the country knows no bounds,” Moody said Friday in a statement to Fox News Digital.
“After we beat Biden in federal court multiple times, his administration admitted to a new policy to skirt the law and release immigrants into the country. We are fighting back against this outrageous and unlawful Biden policy designed to further weaken our border security — making American’s less safe.”
If the NTA/OR policy is blocked, it could result in a situation where no migrants who entered illegally are allowed into the U.S. or an alternative policy being attempted by the administration.
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Meanwhile, the situation at the border remains precarious. While numbers are low, officials have warned against concluding that it will stay that way — especially as summer months are typically some of the busiest at the border.
In his remarks to the press, Nunez-Neto said that DHS was remaining vigilant.
“The conditions that are driving migration in the hemisphere are real and continue. We are watching what’s happening in Mexico and other countries very closely,” he said. “We know that the smugglers will spread misinformation to put migrants’ lives in peril for profit. And so we are continuing to work closely with our foreign partners to make sure that they are continuing their enforcement efforts. And we are obviously continuing ours.”
