Immigration Update: May 2022

May was supposed to mark the end of Title 42, but flimsy lawsuits filed by a number of Republican governors have blocked the administration’s efforts to terminate the disgraceful policy. Meanwhile, news broke of egregious misconduct by both CBP and ICE: CBP announced it will disband units responsible for protecting agents’ who abuse civilians from litigation amid a federal investigation and a new report revealed that ICE has constructed a massive surveillance dragnet that spies on most Americans while circumventing privacy laws. A bright spot on the gloomy horizon has been the Uniting for Ukraine program. Since the program’s launch last month, thousands of people have been matched with sponsors and have been approved for resettlement—the fastest our outdated and overburdened immigration system has moved in recent history.

• Title 42 Remains in Place While Litigation Continues

• New “Asylum Officer Rule” Enters Initial Phase

• CBP to Disband Teams that Covered Up Agents’ Abuse

• New Report Reveals that ICE Surveillance Network Spies on Most Americans

• Uniting for Ukraine Moves Forward with Uncharacteristic Speed

Title 42 Remains in Place While Litigation Continues

Following a public health determination by the CDC on April 1, the Biden administration announced its intention to terminate the Trump-era Title 42 order that required DHS to expel asylum seekers without due process due to the risks of COVID spread. A coalition of 22 states filed a lawsuit to preserve the policy and on May 20—three days before the policy was originally slated to end—a federal judge in Louisiana blocked the Biden administration from terminating it. In an obviously outcome-driven ruling, the judge concluded that the manner in which the administration sought to end the Title 42 emergency order violated the Administrative Procedure Act and that the termination would cause “irreparable harm” by requiring states to spend money on providing public services to migrants.

Since the Trump administration invoked the order in 2020, it has been used nearly 2 million times to expel migrants, many of whom have attempted to enter multiple times. The rule remains a clear violation of international law—which requires the United States to honor the right to request asylum—but for the moment, the Biden Administration’s hands are tied. In all likelihood, what lies ahead is months (or years) of continuing litigation with the order in place, leading some advocates to call for a two-track strategy: continue to contest the lawsuit while also pursuing a notice and comment rulemaking to address the alleged procedural violations.

New “Asylum Officer Rule” Enters Initial Phase

President Biden’s new “asylum officer rule” which we previewed in our March Immigration Update began an initial implementation phase this week at two detention centers in Texas. The rule aims to streamline processing of asylum claims by allowing asylum officers, rather than immigration judges, to grant asylum to applicants for humanitarian relief. Officials hope that this new procedure will enable well-trained officers to process claims more efficiently than they are currently processed, due to the enormous backlog of cases before immigration judges. Under the rule, any asylum claims not granted by officers will be referred to Immigration Judges for reconsideration as a procedural safeguard.

In response to what they criticized as an illegal, reckless, and irresponsible decision by the Biden administration, Senate Republicans last week attempted to strike the new rule legislatively under the Congressional Review Act. The CRA allows lawmakers to formally disapprove of regulations such as Biden’s asylum officer rule. Although this attempt to strike down the rule failed in a 46-48 vote, it is likely that Senate Republicans will attempt once again to terminate the rule.

CBP to Disband Teams that Covered Up Agents’ Abuse

Following mounting pressure from activists and Members of Congress, Customs and Border Patrol (CBP) announced its plan to terminate the Border Patrol’s Critical Incident Teams. The incident teams are tasked with protecting agents from litigation—in other words, covering up routine abuse committed by CBP agents and insulating staff from facing any consequences for their actions.

The Southern Border Communities Coalition (SBCC), a network of Southwest border organizations that have been investigating Border Patrol-related deaths since 2010, found evidence that the Incident Teams’ investigations aimed to protect CPB officers from allegations of abuse. SBCC found that Critical Incident Teams, rather than investigating officer misconduct, instead accused those who suffered death or injury at the hands of Border Patrol agents of having harmed CPB officers. The practice has continued without scrutiny for decades. SBCC wrote a letter to House and Senate leaders in October of 2021, asking for a congressional investigation of the Critical Incident Teams. That letter prompted an investigation by the Government Accountability Office, which is ongoing.

Amid that investigation and sustained pressure from advocates, CBP Commissioner Chris Magnus announced this month that CBP would eliminate all Critical Incident Teams by October 1.

New Report Reveals that ICE Surveillance Network Spies on Most Americans

This month, the Georgetown Law Center on Privacy & Technology released a report detailing a vast and intricate surveillance system created by ICE to spy on most people living in the United States. The report traces the extent to which ICE has grown into a surveillance machine that circumvents local privacy laws and obtains personal data from third-party entities (e.g., utility companies, private databases, and the DMV), compiles an enormous database of American citizens and immigrants alike, and uses it to target people for deportation. Even in sanctuary states whose laws are designed to block this practice, these third-party entities offer a workaround that ICE readily exploits by contracting with data brokers who hand over personal details.

The operation is massively expensive: Between 2008 and 2021, ICE poured an estimated 2.8 billion taxpayer dollars into building a data “dragnet” that includes drivers’ license data of three out of four adults living in the U.S., and gives ICE the ability to locate three out of four adults adults based on utility records. Surveillance at this scale has been happening without authorization or congressional oversight for more than a decade. This stunning report is yet another clear indictment of the immigration enforcement apparatus that Congress has nurtured with hundreds of billions of taxpayer dollars but over which it has failed to provide even the thinnest veneer of legislative oversight.

Uniting for Ukraine Moves Forward with Uncharacteristic Speed

Within a month of President Biden’s announcement of the Uniting for Ukraine program—a streamlined process for Ukrainians to obtain humanitarian parole with the aid of an American sponsor—thousands of applicants have been approved. That efficacy is a welcome anomaly for an overburdened immigration system; that is both something to celebrate and a crude reminder that the harmful delays of a crushing case backlog must be addressed.

For decades, we have watched black and brown migrants—who need resettlement just as urgently as Ukrainians—be routinely and systemically deprioritized. The Ukrainian example offers resounding proof that our government and our communities are capable of incredible speed and mobilization when the resources and political will arise; we simultaneously applaud that success and demand that it be applied equally across migrant populations.

Next month, we expect the Supreme Court to rule on Biden v. Texas, a case that will determine whether the Biden administration can permanently end the Remain in Mexico program. The case—which represents a wholly inappropriate usurpation by the federal judiciary over matters of foreign policy—will have implications far beyond the Remain in Mexico program itself.

Additionally, the United States will host the ninth Summit of the Americas the week of June 6-10 in Los Angeles, California, where leaders from the Western hemisphere will discuss (among other topics) the clear and urgent need for a more collaborative and flexible migration framework. We are hopeful that these discussions will seed meaningful change in the region.

As always, we will keep you updated as these stories unfold in the weeks ahead.

In solidarity,**

Marshall Fitz**
Managing Director of Immigration