Immigration Update: January 2024

Welcome to Emerson Collective’s Immigration Update, a monthly newsletter that seeks to make sense of important immigration-related developments by situating them in broader policy, political, and human contexts.

The ongoing challenges presented by large scale, undocumented migration to our southern border have been dominating the news cycle, producing starkly divergent responses from governmental leaders. On one side, there are government officials earnestly striving to reach common ground on measures to establish control and reduce pressure at the border. On the other, there are politicians crassly exploiting these complex operational challenges to score political points. In this issue, we will cover bipartisan Senate negotiations on the border, groundless impeachment efforts, U.S.-Mexico talks on migration, and Governor Abbott’s latest standoff with the federal government.

This will be an historic election year, both in the U.S. and globally. Unprecedented levels of migration have energized authoritarians who thrive on the viral spread of xenophobia. We will continue to see ugly, dehumanizing rhetoric against people who seek nothing more than hope and opportunity. Whether these purveyors of anger and division prevail or are rebuffed by voters across the globe will have profound consequences for whether we are able to build fair and just systems in the coming years.  Let’s remember that we have the power to elect representatives who choose progress and hope over demonization and hate. You can check your voter registration status here. Now, let’s dive in.

Marshall Fitz

Managing Director of Immigration

Bipartisan Senate Negotiators Reach Border Agreement

As a reminder, we finished last year in a holding pattern over national security funding requested by the White House for Ukraine, Israel, Taiwan, and the border. House and Senate Republicans had made changes to border policy - as opposed to just a significant increase in border funding - a precondition to consideration of the request for national security resources.

The ensuing bipartisan Senate negotiations over new border authorities intensified this month.  With the Biden Administration joining the talks, the negotiators finalized an agreement that would create a new adjudication process and heighten the standard for asylum screening while establishing new power to bar asylum claims between ports of entry when migrant encounters reach a certain threshold. Significantly, the presidential parole authority to admit individuals into the U.S. for humanitarian reasons or for significant public benefit was not altered, meaning the successful program for sponsoring Cuban, Haitian, Nicaraguan, and Venezuelan nationals would remain in effect.

These border measures and the national security funding for U.S. allies have been packaged in a bill that will be voted on in the Senate this week. Setting aside the substance of this bill for a minute – and there are legitimate concerns about some of the details – two parties conducting hard negotiations to address a pressing set of real-world challenges sounds like pretty standard legislating, right? Not exactly.

The presumptive Republican presidential nominee, former President Donald Trump, has made it his mission to kill the bipartisan effort, demanding that House Republicans reject it and declaring that the only way to secure the border is to re-elect him president. The former president has a deeply compliant confederate in House Speaker Mike Johnson (LA), who has now declared multiple times that whatever legislation the Senate might produce is dead on arrival in the House.

Of course, it is no secret that Trump intends to make border and immigration a centerpiece of his party’s campaign strategy. Border related political ads by Republicans have dominated the airwaves, while Trump makes increasingly dangerous claims on social media and in campaign appearances about a border “invasion” by immigrants who are “poisoning the blood of America.”

But it is also clear that some House Republicans demanding border reforms were not interested in trying to solve the complex challenges presented by historic migration levels in the hemisphere. As the bipartisan Senate negotiations came closer to fruition, House leadership shifted into a posture of preemptive rejection for fear that any collaboration might diminish their electoral strategy. That is the very definition of putting party and power before country. And it puts the fate of this broader border and national security package in jeopardy.

Instead of legislating, House Republicans have initiated an impeachment effort against Secretary of Homeland Security Ali Mayorkas in a disingenuous attempt to prove their seriousness about the challenges at our southern border. Early on January 31, these articles of impeachment were voted out of committee and are now headed for a formal vote in the full House. This spectacle has been roundly criticized as unjustified, unfounded, and misguided, not just by Democrats but by Republicans and conservative editorial pages like the Wall Street Journal. The reason for the collective skepticism about this extraordinary maneuver is plain: no cabinet official has been impeached since 1876 and for good reason; policy differences do not rise to the constitutional standard for impeachment of “high crimes and misdemeanors.”

The pressures facing federal, state, and local officials from the historic levels of undocumented migration are real and, from the outside, it appears that the bipartisan Senate negotiations to find solutions to these challenges were conducted in good faith. People can, and will, legitimately disagree about what compromise measures will most successfully – and fairly – address those challenges and reduce those pressures. But the contrast between that very normal process of negotiated compromise and the efforts by Trump and House Republicans to maintain chaos at the border while pursuing a sham impeachment process, all for electoral gain, could not be more stark.

U.S.-Mexico Talks

While congressional paralysis remains the default, executive branch officials continue diplomatic efforts to develop collaborative strategies to address the evolving migration challenges. Following up on high-level talks in December in Mexico City, Secretaries Tony Blinken and Ali Mayorkas hosted the Mexican Foreign Secretary, Alicia Bárcena, and a delegation of top Mexican officials in Washington, DC to address the situation at the US-Mexico border and in the region. High-level talks are expected to resume in February in Mexico City.

The bilateral delegation discussed efforts to address the root causes of migration throughout the hemisphere, the potential expansion of legal channels for migrants in the United States and Mexico, and measures to enhance migration enforcement and combat trafficking. The two governments agreed to work swiftly to visit the Panamanian side of the Darien Gap, where more than 500,000 migrants transited last year from South America, to better understand the situation on the ground and consider joint responses to this phenomenon. They also agreed on the need to involve other governments in formulating regional migration strategies, including engaging President Bernardo Arévalo, who recently took office in Guatemala.

Both the American and Mexican governments’ emphasis on devising regional responses to migration in the Americas highlights the recognition that regional migration cannot be addressed through U.S. border policy alone and requires meaningful engagement in Latin America. This reasonable, cross-border approach provides a more forward looking and sustainable path to fair and effective solutions.

Governor Abbott Sows Constitutional Chaos

Texas Governor Abbott joins House Republicans in the effort to foment political division in lieu of practical solutions.  In addition to the $25 billion American taxpayers spend annually on border and immigration enforcement, since March 2021 Governor Abbott has levied an additional $10 billion on Texans for Operation Lone Star, which includes “funding for the state’s own border wall and to bus thousands of migrants from border towns to Democrat-led cities in the U.S. interior.”

Some of Abbott’s efforts to incite political controversy have succeeded. Some Democratic mayors and governors that have received record numbers of migrants bused to their cities have taken up the call for the federal government to do more in making the border more orderly and secure. The frustration felt by everyone dealing with the fallout of an overwhelmed border is palpable and justified.

Unfortunately, Abbott is disinterested in collaborating with the federal government on solutions.  To the contrary, he has taken matters into his own hands by building dangerous barriers on federal land and preventing border agent access. Earlier this month, Governor Abbott seized privately-owned Shelby Park “indefinitely” in the border town of Eagle Pass. Horrifically, two days after Texas state forces took over the area, a migrant mother and her two children drowned in the Rio Grande while attempting to cross into Eagle Pass through Shelby Park. State-imposed access restrictions prevented federal agents from heeding their calls for help.

On January 22, the Supreme Court seemed to put to rest the interference of Texas with the federal government’s border enforcement activities. In a succinct decision, it stated the obvious: “federal law still applies to Texas.” It reversed a jaw dropping ruling by the 5th Circuit Court of Appeals, which concluded that Texas could block federal agents from cutting or removing “parts of a concertina-wire barrier along the Mexican border that Texas erected to keep migrants from crossing into the state.” One of the most firmly established constitutional principles is that “”duly enacted federal laws overcome all state laws that conflict with them, and that states may not prevent federal officials from performing their official job duties.”

Even more astonishing – and troubling – has been Texas’s reaction to the High Court ruling. The State has committed to rebuilding the barrier wherever it is cut down. Trump has joined in, calling for all states to send their National Guards to repel migrants at the border and 25 Republican governors have signed a statement in support of Texas’s “right to self defense”. If it persists, this state defiance of federal supremacy could, at some point, devolve into a constitutional crisis.

Let’s hope that good faith efforts to advance more order and more humanity in our immigration system prevail over reckless, divisive political standoffs. Human beings will continue to move in response to destabilizing socio-economic conditions; we always have. The question is whether we can find the political will to address those conditions and manage that movement in a way that advances our collective interests. We stand at the ready to work with all who share that objective.