Immigration Update: April 2022

The courts drove immigration news this month: An onslaught of lawsuits could delay the Biden administration’s plan to rescind Title 42 and the Supreme Court heard arguments challenging the administration’s effort to end the Remain in Mexico program. Amid the Biden administration’s struggles to undo some of the most harmful Trump-era immigration policies, there was good news, too. The Department of Homeland Security unveiled a program to streamline processing for Ukrainians seeking protections in the United States and advocates’ efforts paid off with the announcement of Temporary Protected Status for Cameroon. Read more about all these developments below:

• Lawsuits Challenge the Biden Administration’s Plan to Rescind Title 42 this May

• Supreme Court Revisits the Termination of Trump’s ‘Remain in Mexico’ Program

• DHS Announces ’Uniting for Ukraine’

• Administration Grants TPS for Cameroon

Lawsuits Challenge the Biden Administration’s Plan to Rescind Title 42 this May

The Biden administration announced last month that they would end Title 42 on May 23. The CDC had finally recommended an end to the policy, which uses the pandemic as justification to expel asylum seekers arriving at the border without due process. Republicans resisted the decision in Congress and in the courts, and on April 25, a federal judge in Louisiana issued a temporary restraining order in a lawsuit brought by a coalition of 22 states that keeps Title 42 in place for at least the next two weeks. Texas filed an additional lawsuit on April 22 that argues the Biden administration did not follow procedural requirements when rescinding Title 42 (the case is still pending).

The GOP has already declared its intent to run a midterm campaign that frames increased border encounters as a crisis ill-managed by “open border” Democrats. Deploying fear-mongering language like “invasion” and “hordes,” they assert that lifting Title 42 (which is an emergency public-health authority not a border management tool) will add to the dangers they allege. Unfortunately, some Democrats have preemptively caved to these political attacks by joining Republican demands that the administration delay the move. Several have gone so far as to co-sponsor legislation that would force the administration to keep the policy in effect.

In response to this growing political tension, Secretary Mayorkas publicly outlined DHS’s six-part strategy for managing the expected uptick in border crossings:

• An increase in personnel and resources at the border;

• Expanded migrant processing capacity;

• Focused efforts to deport, detain, or prosecute certain migrants, like those who make repeated attempts to cross the border without authorization;

• Partnership with border organizations;

• Increased enforcement against human traffickers and smugglers; and

• A coordinated effort with regional actors to deter non-asylum-seeking migration.

Last week, Secretary Mayorkas testified before several congressional committees to describe the administration’s whole-of-government efforts to establish control over the system. His confidence and clarity reinforced the administration’s seriousness about upholding its international obligations and to managing migration increases in a secure and humane manner.

Supreme Court Revisits the Termination of Trump’s Remain in Mexico Program

On April 26, the Supreme Court heard oral arguments in Biden v. Texas. The case will determine whether the Biden administration can permanently end Trump’s Remain in Mexico program, which requires asylum seekers to wait in Mexico while their cases are adjudicated and which the Biden administration terminated soon after inauguration. A federal judge forced the administration to restart the program in December, and the Supreme Court will now review that decision.

Oral arguments centered on a baffling assertion by the state of Texas and ruling by a Trump appointed judge: That our immigration laws require the government to either detain every single border crosser or return them to Mexico. Notwithstanding that this would mean that every president since Clinton has been violating our laws, the lower courts ruled that repeal of the program and reversion to the pre-Remain in Mexico status quo would violate federal law. This dubious legal conclusion ignores the many alternatives to detention and expulsion available to DHS under current law, not to mention the impossible burden it would place on the agency since Congress has not appropriated sufficient funding to detain or expel every arrival.

Beyond the specifics of this one policy, the case represents an egregious breach of the separation of powers: the federal judiciary is neither equipped to make judgments over foreign policy nor is it empowered to do so in our constitutional order. The decision—which we expect early this summer—will have profound implications for our immigration system and our democracy.

More background on the case can be found in February’s update.

DHS Announces Uniting for Ukraine

On April 21, DHS announced a streamlined humanitarian parole program titled, “Uniting for Ukraine.” The program is a concrete step toward President Biden’s promise to welcome up to 100,000 Ukrainian refugees to the United States.

Applicants must have been residents in Ukraine as of February 11, 2022 and have a sponsor in the United States (the program prioritizes those with family in the country, assuming that others would prefer to remain in Europe). Alongside Uniting for Ukraine, the State Department will increase refugee resettlement processing and broaden visa-processing and consular posts overseas.

The administration’s decision to use parole in this instance is telling: Our refugee program is far too overwhelmed to accommodate large numbers of people quickly, and parole is one of the only flexible administrative tools available. The Biden administration has resettled tens of thousands of people using parole—including more than 76,000 Afghans and hundreds of families separated under Trump’s zero-tolerance program, who would otherwise qualify for asylum.

This workaround program offers no path to citizenship (which asylum does) but it offers relief far faster than traditional asylum processing. Given the realities of our immigration system, the program is well designed to receive and resettle Ukrainian arrivals.

The Administration Grants TPS for Cameroon

After months of relentless organizing and advocacy by our partners, the administration announced that it would designate Cameroon for Temporary Protected Status (TPS) on April 15. Cameroonian nationals who have been residing in the United States as of April 14, 2022, will be eligible to apply for status, which provides protection from deportation and work authorization. The administration will decide whether to renew the designation in 18 months.

Cameroon has been grappling with ongoing armed conflicts—including a separatist movement and a war with transnational terrorist group Boko Haram —for years. Rising food and economic insecurity have compounded those dangerous living conditions. This announcement is a true testament to the power of the advocacy community—and to our insistence that Black immigrants be granted the protections they need and deserve.

While all the above made headlines this month, the administration continued to quietly move forward with its longer-term strategy to address the root causes of forced migration in collaboration with governments throughout the region. Secretary of State Anthony Blinken traveled to Panama this month for a ministerial conference on migration; that conversation builds toward the Summit of the Americas that will take place in June.

The failure to engage in migration-management strategies beyond our borders has led to an unending cycle of increasing arrivals followed by insular political backlash that tears at the fabric of our democracy. This effort by the governments in the Western Hemisphere to create a more collaborative migration framework provides a unique opportunity to disrupt that cycle and create a humane, orderly migration system that recognizes the dignity of all people.

In solidarity,

Marshall Fitz
Managing Director of Immigration