Immigration Update: February 2023

February started with welcome news that the Administration intends to end the national health emergency, thus terminating the dubious legal justification for rapidly expelling asylum seekers. Despite the auspicious beginning, the month proved to be challenging. From a deeply misguided asylum proposal to a heartbreaking report that more than 3,800 migrant children have been exploited by some U.S. employers, February provided another stark reminder about the entrenched failures of our immigration system.  Continue reading for information about these developments and more.

• SCOTUS Drops the Title 42 Case

• DHS and DOJ Issue Troubling Proposed Regulation

• Lawsuit Challenging New Parole Program Advances

• Biden Administration Announces Crackdown on Labor Exploitation of Migrant Children

SCOTUS Drops the Title 42 Case

On February 16, the Supreme Court abruptly cancelled oral arguments in a case challenging the government’s continued use of Title 42 to expel migrants arriving at our southern border without providing them a chance to seek asylum.

A lower court had ruled that the government’s reliance on Title 42’s public health emergency powers to block access to asylum was arbitrary and capricious and ordered the Administration to terminate the policy. Several Republican-led states sought to intervene in the case to challenge that ruling. The Supreme Court ordered the policy to remain in effect while it considered the states’ petition to intervene. On February 10, however, the Biden Administration announced that it will terminate the national emergency concerning the COVID-19 pandemic on May 11, thereby eliminating the legal foundation for the border expulsion policy.

The looming end to this policy is long overdue. Cynically instituted under a public health emergency façade (despite broad opposition from public health and legal experts), the Trump Administration weaponized Title 42 in service of its goal to end access to asylum. The Biden Administration sought to terminate the misguided program but was enjoined from doing so by a different judge in an earlier case, which became the precursor to the current litigation. In the interim, however, faced with historic levels of asylum seekers arriving at the US-MX border, the Biden Administration had come to lean on Title 42 as an operational crutch to address the pressures on border processing.

While the imminent termination of the Title 42 border policy is a welcome course correction, it is not the end of the story. Losing the legal authority to rapidly expel arriving migrants has significant implications for the Administration’s border strategy and has sparked several concerning developments, some of which are outlined below.

DHS and DOJ Propose Troubling Asylum Regulation

In response to the extraordinary migration pressure on the southern border, the Administration has sought to establish more orderly processes for arriving migrants through what it calls a ‘carrot and stick’ approach: the carrot was the creation of a new “parole program” to enable migrants from certain countries to enter through “legal pathways”; the stick has been rapid expulsion via Title 42 of people from those same countries who arrive at the border without authorization.

When Title 42 expires in May, as described above, the Administration will lose that stick. In a quest for alternative disincentives, the Administration has proposed a new regulation that would severely restrict the ability of people who arrive at our southern border to seek asylum. The rule, which has a 30-day comment period, would effectively prohibit anyone from seeking asylum if they have not applied for—and been denied—asylum in another country through which they have transited to reach the U.S. border. The primary exception to this rule is for individuals who schedule an asylum interview with U.S. Customs and Border Protection through a new mobile app, which currently has significant operational shortcomings.

Practically speaking, this rule means that anyone who has not sought and been denied asylum in Mexico or other countries would be barred from applying in the U.S. and rapidly expelled. The superficial appeal of this approach is obvious for officials grappling with border pressures. But this alluring shortcut to control unprecedented migration in the Americas is fool’s gold.

Our partners have highlighted myriad concerns with this rule, not least of which is that it likely violates federal law. Consistent with our obligations under the Geneva Convention, the U.S. immigration code authorizes anyone arriving in the U.S., including between ports of entry, to request asylum. But the rule also raises serious practical concerns that will undermine its objectives.

For starters, it subverts the commitment the Administration made in the LA Declaration on Migration and Protection to a shared regional responsibility framework for managing migration in the hemisphere. The national interest behind that commitment was the overdue recognition that the U.S. cannot effectively manage migration simply by hardening or externalizing borders.

This asylum rule, however, unilaterally externalizes our borders, imposing extraordinary burdens on countries that are already shouldering significant responsibility for absorbing large scale migration flows across the Americas. Not only would it effectively force Mexico to receive all expelled asylum seekers, it would also inevitably lead to a chain reaction where Mexico pushes asylum seekers and humanitarian crises back down to other countries in the hemisphere.

We are already starting to see the first unintended consequences of the rule, highlighting its potential to undermine regional migration management efforts and relationships with our neighbors. We should be shoring up capable partners like Colombia, Chile, Costa Rica, and Mexico rather than pressuring them to do more.

Instead of shortcuts to complex, long-term challenges, what is needed is urgency and steadfast commitment to addressing the root causes of migration; promoting the stabilization and integration of migrants in key host countries; establishing more robust and flexible legal pathways; deepening cooperation with regional partners; and modernizing U.S. asylum processes, immigration laws, border enforcement and infrastructure.

We strongly commend the Administration for doing more than any prior administration to pursue more visionary and holistic migration management strategies, which is precisely why it must avoid policies like this that will undermine those efforts.

Lawsuit Challenging New Parole Program Advances

Yet another concern with the proposed asylum rule is that the “carrot” it is designed to offset—the new parole program—is in legal jeopardy. In our January Immigration Update we highlighted that Texas and 20 other states had filed a lawsuit challenging the program. In an additional filing this month, those states requested a preliminary injunction to expedite a halt to the program, despite its considerable success.

The Department of Justice countered by requesting a change of venue, accusing the Republican-led states of “judge shopping”. This was wise given the district judge’s clear bias and antagonistic history with the administration on other immigration policy issues. If the case does not get transferred to another district and the parole program is enjoined, the incentives side of the Administration’s carrot and stick approach would be lost. All that would be left is a radical restriction on the ability to seek protection in the United States, with no offsetting alternative legal avenues.

Biden Administration Announces Crackdown on Labor Exploitation of Migrant Children  

On February 27, the Biden administration announced a wide crackdown on the labor exploitation of migrant children around the United States after The New York Times published a deeply investigated and heartbreaking exposé into immoral and plainly illegal practices by companies across the U.S. More than a dozen major companies in 20 states broke child labor laws.

Unfortunately, exploitation of vulnerable immigrants is a common and predictable byproduct of our broken immigration system.

Still, the multilevel failure of the system to protect these children from abuse is shocking. Of course, the state Departments of Labor must be the front lines against the exploitation of child labor, but their success depends on collaboration with other federal, state, and local agencies. And the inadequacy of communication, coordination, and accountability among the different authorities allowed these kids to fall through the cracks.

Among the welcome announcements by the Administration, the U.S. Department of Health and Human Services has committed to tighten its follow up and tracking of unaccompanied children. It is also seeking more resources from Congress to build out holistic “post-release” wraparound services for all these children.

For its part, the U.S. Department of Labor promised a crackdown that will include more aggressive investigations not only against the labor subcontractors that technically “hire” these minors but also the factories and suppliers that reap the benefits of this exploitation. Big names like Walmart, Target, General Mills, and Frito-Lay have benefitted from the exploitation of these minors but have been insulated from legal jeopardy because the subcontractors are technically the employer. Importantly, the Administration now aims to target the entire supply chain.

The real question is whether this latest jarring reminder of the expansive human suffering and trauma exerted by our broken immigration system will spur Congress to act.

We remain confident that the historic levels of migration across the hemisphere can be effectively managed in ways that advance the interests of everyone. And at this important inflection point, we are fortunate to have an Administration that is open to innovative programs and creative thinking—and responds forcefully to ugly exploitation. Our commitment is to both support and pressure the government to maintain focus on long-term, durable solutions that comport with core values while ignoring the siren’s song of short-termism that drives politics. Thank you for joining us on this journey.

In solidarity,

Marshall Fitz

Managing Director of Immigration