Immigration Update: June 2022

June provided hope for a more constructive approach to addressing accelerating migration throughout the Western Hemisphere. The Summit of the Americas in Los Angeles produced an historic declaration in which more than 20 countries committed to a coordinated, regional approach to migration management and announced a number of preliminary initiatives to that end.

Unfortunately, this month also spotlighted the terrible human cost of relentless legal attacks on the administration’s efforts to establish a safe, legal, and orderly immigration system. Judicial rulings preventing President Biden from reversing dangerous Trump policies and from reopening our asylum system have forced migrants to take desperate measures, including putting their lives in the hands of brutal criminal smugglers. The result? An unfathomable tragedy in which at least 53 migrants died of heat exposure in a tractor-trailer in Texas.

• Summit of the Americas Yields Results

• SCOTUS (Belatedly) Allows President To End Remain in Mexico Policy

• Injunction Goes into Effect Against DHS Enforcement Priorities

• 53 Migrants Dead in Human Smuggling Tragedy

1. Summit of Americas Yields Results

In early June, heads of state and stakeholders from across the Americas met in Los Angeles to gather for the ninth annual Summit of the Americas. Despite diplomatic and political hurdles ahead of the Summit, including the non-attendance of several key leaders from the region, the Summit resulted in important migration-related announcements by the Biden-Harris administration and other regional leaders in Los Angeles.

The most significant accomplishment of the Summit was the historic adoption by 21 countries of the Los Angeles Declaration on Migration and Protection (LA Declaration). The signatories of the LA Declaration pledged to strengthen national, regional, and hemispheric efforts to create the conditions for safe, orderly, humane, and regular migration and to strengthen frameworks for international protection and cooperation. In light of the historic scale of current migration and the vanishingly remote prospects for passing bipartisan immigration reform in this political climate, the Administration’s strategic decision to advance a regional migration approach was welcomed by many stakeholders. This shift from a border-centric focus to a collaborative migration-management strategy across the region is one that will only be possible with broad buy-in from nations across the hemisphere. So support for the declaration among such a broad constituency is a promising sign for increased regional cooperation.

In addition, the U.S. government made two important policy commitments designed to address root causes of irregular migration from northern Central America and to expand and improve access to legal migration channels. First, Vice President Harris announced the launch of a public-private initiative to address root causes of migration from countries in Northern Central America. With $50 million in funding from Congress and similar level investments from philanthropy, the Central American Service Corps will provide young people from El Salvador, Guatemala, and Honduras with paid community-service opportunities, mentorship, and paths to future employment. Second, the Administration launched a pilot visa program to incentivize recruitment of Central American farmworkers by U.S. growers and, crucially, to improve working conditions for all farmworkers. Because this program has no cap on the number of visas that may be granted each year, it presents one of the few current options for redirecting irregular migration into legal avenues.

Much of the advance press that the Summit received focused on the failure to attend of several key leaders from Latin American countries; notably the leaders of Mexico, El Salvador, Guatemala, and of course Cuba and Venezuela were absent. Yet, most of these countries did send high-level delegations to the Summit who represented their governments in critical conversations. Additionally, the White House also just announced the planned July visit of Mexican President López Obrador to the White House, offering additional hope that Mexico will be a critical partner in a coordinated regional approach to migration in the Americas.

2. SCOTUS (Belatedly) Allows President To End Remain in Mexico Policy

On June 30, SCOTUS issued a decision in Biden v. Texas, the long-running case determining the future of the Remain in Mexico program, formally known as the Migrant Protection Protocols (MPP). In a decisive victory for immigrants and asylum-seekers, the Court—in a strongly worded decision—held that the Biden Administration was finally permitted to end the Trump-era policy that has forced over 70,000 asylum-seekers to remain in Mexico while awaiting their court dates in the United States.

Canceling MPP had been a campaign promise of President Biden due to the significant humanitarian concerns associated with the program, including the dangers asylum seekers face in Mexico while awaiting court dates; poor health and sanitation conditions; low rates of legal representation; and the difficulty of preparing asylum cases from tent cities along the border. Biden had attempted to end the policy, disenrolling thousands of individuals from the program, until a federal judge in Texas ordered the administration to reinstate the policy after a challenge from Texas and Missouri.

In addition to rejecting the lower court’s interpretation of the relevant statutes, the Supreme Court emphasized that the ruling would have interfered with the President’s constitutional role to conduct foreign affairs. Despite the clear signals delivered by this opinion, we expect to see additional challenges from states like Texas as they seek any means to restrict immigration. It also remains to be seen what will happen to the 70,000 individuals whose lives have been upended by MPP. Biden may choose to parole these individuals into the United States, or to seek some other manner of relief for these people who have been subject to dangerous, life-threatening conditions as a result of MPP.

3. Injunction Goes into Effect Against DHS Enforcement Priorities

In yet another lawsuit by anti-immigrant governors from several states, a Trump-appointed federal judge in Texas has blocked DHS’s recently imposed guidelines that prioritized certain groups of immigrants for enforcement. Last May, Secretary Mayorkas of DHS announced commonsense guidelines that prioritized immigrants for removal who were a threat to public safety. This was a significant departure from the Trump administration’s approach, which indiscriminately targeted for removal every person without legal status, regardless of their equities.

The judge’s ruling thus limited the agency’s inherent authority to exercise prosecutorial discretion—the power to decide whom to investigate, arrest, detain, charge, and prosecute. This, however, is how every law enforcement agency operates; either explicitly or implicitly, it must make judgments about how to focus and deploy limited resources. Here, Secretary Mayorkas’ decision to prioritize enforcement against immigrants who pose serious threats to public safety or national security over others makes eminent public policy sense. By contrast, the transparently political calculus of states to challenge those priorities and of the judge siding with them will only make us all less safe and further undermine the administration’s ability to establish an orderly, humane enforcement regime.

The lower court rulings in the MPP case (described above) and this decision to block DHS’s discretion demonstrate a dangerous willingness by Trump-appointed judges to usurp the executive branch’s constitutional authority. In the case of MPP, the lower court judges decided to substitute their judgment for the President’s authority in the conduct of foreign relations; in this case, the judge has encroached on inherent enforcement discretion reserved to the executive branch. Fortunately, the Supreme Court in the MPP case recognized the risk posed by courts interfering with the president’s executive power; hopefully, as this case wends its way forward, appellate courts will likewise recognize the constitutional peril of infringing on DHS’s authority to establish enforcement priorities.

4. Fifty-Three Migrants Dead in Human Smuggling Tragedy

In one of the most horrifying incidents ever at the U.S. southern border, 53 migrants were found dead or dying in the back of a tractor-trailer in San Antonio Texas on June 28. While temperatures rose to over 100 degrees, at least 62 people—including children—sweltered while they were locked in the back of a non-air-conditioned truck as the driver fled the scene. Texas Republican Governor Greg Abbott and other critics of Biden’s immigration policies immediately blamed the deadly incident on the Administration’s “open border policies” and refusal to enforce federal law.

These utterly baseless political attacks—literally nothing in the president’s policies could objectively be considered to support “open borders”—serve only one shameless purpose: to deflect accountability for an unspeakable, horrific tragedy. State governors, such as Abbott, have done everything possible to prevent Biden from implementing policies aimed at making the border safer for migrants and asylum seekers. Court challenges by Texas have stymied Biden’s attempts to overturn an array of dangerous Trump-era policies and have left tens of thousands of migrants without any legal means to apply for asylum at the border. Foreseeably, this has forced desperate individuals into the hands of human smugglers like those who left 53 people to die in agony.

Although the gun safety legislation that passed this month suggested the possibility of a bipartisan breakthrough on other issues, the prospects for even narrowly focused progress in Congress on immigration reforms remains dim in the near term. While we continue to seek opportunities to pry open the legislative window, it remains imperative that the Administration pursue all options to bring order and humanity to the system. They have already taken an array of important steps – including this month’s agreement with hemispheric partners to better manage migration flows.

But as this update highlights, its job has been made more challenging by anti-immigrant state leaders and activist judges determined to block even the most common-sense initiatives. Thankfully, the Supreme Court reversed one extreme example of that obstruction strategy with the MPP ruling. But that took time and in the interim, we witnessed the tragic human toll in Texas. Moreover, as the court’s decision to overturn Roe v. Wade after 49 years teaches, we cannot rely on the court as a backstop to prevent state efforts to infringe on individual rights. It is on all of us to advocate for better policies, a stronger democracy, and elected officials committed to the public good not the preservation of power.

In solidarity,

Marshall Fitz
Managing Director of Immigration