While the Biden administration is projecting a short-term drop of more than 70% in encounters along the southern border after the expiration of the Title 42 public health order, it faces a mounting legal battle that could be — and has been — torpedoed. some important rules it put in place.
“We have seen … a significant decrease in border encounters, more than a 70% reduction since the lifting of Title 42 on May 11th,” DHS official Blas Nunez-Neto told the journalist at the border this week.
Nunez-Neto also outlined how the administration has expanded what it calls legal pathways to the US, including allowing more than 1,000 migrants a day in the US to make an application on the CBP One app.
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“We have also seen how the consequences that we deliver as part of our comprehensive effort to manage border flows are working,” he said.
Staring into the third year of a historic crisis at the southern border, which critics have blamed on the administration’s “catch-and-release” policies and reduced domestic enforcement, the administration has put some additional border rules in place to prevent further climbing once the Title 42 public health order ended on May 11.
A Customs and Border Protection officer (L) stands guard as immigrants line up to be transported from a makeshift camp between the US-Mexico border walls on May 13, 2023, in San Diego, California. (Mario Tama/Getty Images)
At the heart of that approach is an asylum “Circumvention of Lawful Pathways” rule, which went into effect on May 11, which presumes that migrants are ineligible for asylum if they entered the US illegally and failed to -claim asylum in a country where they have already traveled.
While that doesn’t mean they won’t be deported to the US, in theory it would bar most migrants from making a valid asylum claim unless they take advantage of the pathways set out by the administration. The most popular of those pathways is using the CBP One app to book an appointment at a port of entry with a CBP officer.
Meanwhile, the “presumption of ineligibility” (the administration has rejected claims by left-wing activists that it amounts to a “ban”) if a migrant can demonstrate that the app does not work or that they are in grave danger. This 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 this was an illegal restriction on the right of foreigners to claim asylum in the US
But in recent days, the rule has also seen challenges from GOP-led states. The first came from Texas, which said neither the CBP One app nor officials ask whether the migrants they let in are seeking asylum. The Texas complaint alleges that the administration is encouraging migrants to cross the border “without establishing that they meet certain exceptions 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 legal.
“Defendants claim that the Circumvention Rule will deter illegal border crossings, reduce the number of new illegal aliens in the United States, and reduce reliance on human smuggling networks. However, the reality is that the Circumvention Rule is some combination of half measures and a smoke screen,” the states, led by Indiana, argue. “It’s full of exceptions, and it’s part of a broader effort by the Biden Administration to obfuscate the real situation on the Southwest Border.”
If any of the three lawsuits, filed in various courts across the county, are successful, it could dramatically change how the Biden administration uses its border powers.
Separately, the administration already has a fixed migrant release policy it put in place the day before Title 42 expired. That policy, called “parole with conditions,” saw migrants released to the interior without court date due to overcrowding. Nearly 9,000 migrants were released while the policy was in place.
A federal judge shut down the policy just hours before Title 42 expired. She agreed with arguments from Florida Attorney General Ashley Moody that the policy was “materially identical” to the one she blocked in March .
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US Homeland Security Secretary Alejandro Mayorkas speaks during the daily press briefing in the Brady Press Briefing Room of the White House in Washington, DC, on May 11, 2023. Migrants entering the US without documents while controls at during the pandemic is lifting May 11 long-term bans and possible prosecution, Homeland Security Secretary Alejandro Mayorka warned. “Our borders are not open,” Mayorkas said, hours before the US implemented 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 denounced the block as “sabotage” and warned it could lead to severe overcrowding at CBP stations. That hasn’t happened yet, given the drop in migrant border encounters 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 block.
“Biden’s will to violate public safety immigration laws and bring massive amounts of illegal immigrants into the country knows no bounds,” Moody said Friday in a statement to Fox News Digital.
“After we defeated Biden in federal court multiple times, his administration admitted to a new policy to circumvent the law and release immigrants into the country. We are fighting against this outrageous and illegal policy of Biden’s designed to further weaken our border security — making America’s less safe.”
If the NTA/OR policy is blocked, it could result in a situation where no illegal immigrants are allowed into the US or an alternative policy that the administration tries.
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Meanwhile, the situation at the border remains precarious. Although the number is low, officials caution against assuming it will stay that way — especially since the summer months are typically some of the busiest at the border.
In his press statements, Nunez-Neto said DHS remains vigilant.
“The conditions driving migration in the hemisphere are real and ongoing. We are watching what is happening in Mexico and other countries very closely,” he said. “We know that smugglers will spread misinformation to put migrants’ lives at risk for profit. And so we continue to work closely with our foreign partners to ensure that they continue their enforcement efforts. And clearly we continue with us.”
