Immigration Update: July 2023

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

A recurrent theme of this monthly missive is that, in the absence of a functioning system, federal agencies and courts have been left to wrangle over the direction of immigration policy, while cities, states, and other countries must grapple with the real-world human impacts of our broken system. Because Congress has defaulted for decades on its legislative responsibility to establish a coherent immigration policy, other actors have been forced to innovate and try to manage around this dysfunctional system.

Those themes resurfaced in force once again in July. A federal court enjoined the Biden Administration’s rule attempting to regulate the asylum application process; states continued to duel between cruel and welcoming strategies; and one country along the active hemispheric migration path has adopted a new approach.

• Federal Court Blocks Asylum Rule but Gives Administration Time to Appeal

• Some Good and Some (Very) Bad Policies Coming from States

• Panama Takes Steps to Stabilize a Growing Immigrant Population

Federal Court Blocks Asylum Rule but Gives Administration Time to Appeal

On July 25, a federal court enjoined the Biden administration’s controversial Asylum Rule, which seeks to force people to apply for asylum only through scheduled appointments at a port of entry using the CBP One app. The rule presumptively renders everyone who crosses the border between the ports of entry ineligible for asylum. Our partners at the ACLU challenged the rule as a violation of federal law, which authorizes anyone arriving in the United States – including between ports of entry – the right to request asylum.

A federal district court judge in California agreed with the plaintiffs and concluded that the rule was both substantively and procedurally invalid. Nonetheless, the Judge provided the Administration two weeks of leeway to appeal his decision before it goes into effect. It will not be surprising to see the Rule remain operational for the foreseeable future while the appeals process takes place. The Administration sees the Rule as an important tool in its efforts to establish a more orderly system and reduce irregular migration at our southern border and will likely defend it all the way to the Supreme Court.

Our asylum regime is collapsing because it has become the singular mechanism for most migrants seeking entry into the United States. It is a one-place, one-door problem: without flexible, robust legal pathways for most people to enter the U.S. from abroad, the only place they can apply is at the U.S. border and the only legal avenue they can pursue is a claim for asylum. Of course, many people arriving at our border do, in fact, meet the asylum standard and we should ensure that they are able to pursue that relief. But even the most generous interpretation of that standard would not apply to most arriving migrants.

The solution is not to close the one door to entry that currently exists; it is to build more doors into the U.S. and to create more opportunities in other countries so fewer people feel compelled to leave their homes. To its significant credit, this Administration has leaned into one of the few tools it has to create more legal pathways by expanding opportunities for individuals to apply for parole from their home countries. But, as with the Asylum Rule, those efforts are also being challenged in federal court.

This defective approach to setting immigration policy, where the executive branch stretches the limits of its authority to redress pressing challenges with the broken immigration system only to have the judicial branch restrict or reject those efforts, makes it impossible to develop coherent, forward-looking strategies. This ongoing call and response between the two branches of the federal government least equipped to set immigration policy highlights the urgent imperative of congressional action.

Unfortunately, rather than attempting to solve these challenges, House Republicans have decided to play political games by threatening to impeach Homeland Security Secretary Alejandro Mayorkas on transparently false pretenses. While they dither, people die. As we wrote about in last month’s edition, Panama’s nearly impenetrable Darién Gap has emerged as a deadly optionfor those seeking a better life in the United States. Those who make it to Mexico and are waiting to make asylum appointments through the CBP One app have become targets for rape and kidnappings for ransom. And those who attempt to cross the Mexico-U.S. border are also dying in record numbers – 890 bodies were discovered on the U.S. side in 2022 – due to extreme heat, drowning, and other horrors.

In addition to the profound human toll, it is increasingly more costly for the American people to maintain this broken system than it would be if we made it remotely functional. We must demand more from our representatives in Congress because we all deserve better.

Some Good and Some (Very) Bad Policies Coming from States

The horrifying and inhumane treatment of migrants by the state of Texas continued this month with the discovery that state officers had “been ordered to push small children and nursing babies back into the Rio Grande, and have been told not to give water to asylum seekers even in extreme heat.” The state has also deployed “wrecking ball-sized buoys” as a floating barrier to deter river crossings by migrants and strung razor wire along 90 miles of the border that has led to serious injuries. These monstrous actions by the state have led the Department of Justice to file a lawsuit against Texas to remove the barriers, which are causing obvious public safety and humanitarian concerns.

Several civil rights groups have also sued the state of Florida, which is in a race with Texas to adopt the harshest anti-immigrant policies. They are challenging legislation that went into effect on July 1 seeking to “criminalize the transportation of individuals into Florida who may have entered the country unlawfully.” As succinctly outlined by our partners at United we Dream, however, this law goes much further and has intentionally created a climate of fear for immigrant workers and their families. But by disincentivizing immigrants from driving or seeking health care or emergency services, the state is putting everyone at risk.

Fortunately, while Florida and Texas are in a race to the bottom, other states across the country are doing the exact opposite – seeking to knock down barriers to inclusion with welcoming initiatives. To name just a few examples:

• California announced a new $4.5 million pilot program offering free legal assistance for undocumented farmworkers this month.

• Illinois will begin issuing permanent driver’s licenses regardless of immigration status.

• Wisconsin’s flagship university, the University of Wisconsin, clarified that humanitarian parolees, similar to refugees and asylees, are eligible for in-state tuition after 12 months of consecutive residency like other Wisconsin residents.

• The Republican governors of Indiana and Utah urged Congress to enact immigration reform in a recent Washington Post op-ed.

As we noted in last month’s edition, Texas and Florida notwithstanding, most Americans continue to embrace policies that improve economic outcomes for everyone by reducing barriers to integration for our immigrant neighbors. As with so many momentous issues, the common sense of significant majorities of Americans is un-reflected in the poisonous political posturing of our federally elected officials.

Therein lies the conundrum: only Congress can build the functional, humane system America wants and needs; but in its radical disconnect from American majorities, Congress itself is the biggest barrier to solutions.

Panama Takes Steps to Stabilize a Growing Immigrant Population

Historically a critical country for ships transiting between the Atlantic and Pacific oceans, Panama has increasingly played a significant role in managing migration between the South and North American continents. As growing numbers of migrants originating in South America have crossed the daunting terrain of the Darién Gap between Colombia and Panama, Panama has become the country of arrival for migrants seeking to relocate to North America.

Until recently, Panamanian officials have treated this increased flow of migrants like ships on the Canal – as merely transiting through the country. Indeed, Panama has actively encouraged the swift passage of migrants through the country directly to the Costa Rican border through an efficient busing system subsidized by the government. But as the numbers of migrants have continued to grow, so has pressure on Panama and other countries to provide real options for them.

Recognizing the imperative to serve as more than a pass-through for migrants, this month Panama has created a two-year Temporary Protection Program for irregular migrants of any nationality who have been in the country for at least one year, among other requirements. Signalling the high demand for programs like this, the government received more than 4,000 applications for its program within the first 24 hours, with officials looking to process 200 applications daily.

While the costs are high (the permit costs $500 USD for adults and $250 USD for minors, in addition to other charges that can amount to more than $450 USD in additional fees), this is a positive development for a country that has resisted welcoming the hundreds of thousands of migrants and refugees that now cross its territory every year.

While the U.S. grapples with the continuing fallout of a broken and archaic immigration system, we welcome the initiative of other actors in this migration drama who are responding to humanitarian needs with ingenuity and compassion. The example of Panama pivoting from reluctant participant to innovative partner suggests there is space to build a durable, hemispheric migration management system. And the example of other states defying the cruel impulses of Texas and Florida remind us that most Americans have the will – just not yet the political power – to advance the values of a welcoming and inclusive society at the national level.

In solidarity,

Marshall Fitz

Managing Director of Immigration