Immigration Update: May 2023

Welcome to Immigrant Heritage Month! Since June of 2014, Immigrant Heritage Month has prompted people across the United States to explore their own heritage and celebrate our shared diversity. It reminds us that America is defined in no small part by the resilience, courage, and ingenuity of everyone who seeks opportunity and refuge on our shores. Their individual stories are woven into the rich tapestry of America’s past, present, and future.

With the termination of Title 42 and the simultaneous introduction of several new policies, last month reminded us that the path to advance humane, welcoming policies that embrace our multicultural identity is still long and winding. But the commitment of immigrants to this country and their perseverance in the face of countless, unnecessary obstacles remains undeterred and inspiring. Please read on as we cover some of those twists and turns below.

• Moving on from Title 42

• Americans Embrace Solutions Beyond the Border

• Compensating for Congressional Failures – See, e.g., DACA

Moving on from Title 42

The biggest development this month was the long-awaited termination of Title 42. As we reported last month, the Administration and many experts anticipated that the end of the rule would lead migrants gathered in Mexico to immediately seek asylum and overwhelm processing capacity. However, contrary to the expected chaos, encounters were surprisingly down from about 11,000 the Tuesday and Wednesday before Title 42 expired to about 4,400 each day in the week immediately following.

The Biden Administration was so convinced of an impending surge that, on May 2, they approved sending 1,500 US troops to the border. This deployment was for 90 days and for operational support, not direct intervention with people crossing the border, but it generated intense backlash from advocates and other Democrats. (As alarming as militarizing the border seems, this role for the military is not actually new — the Department of Defense has supported the Department of Homeland Security on the border every year since 2006.)

Though it is still too early to fully understand exactly why the numbers have diminished at the southern border, some shelter operators on the Mexican side of the border say that while migrants continue to arrive, there are signs that some are rethinking strategies for entering the U.S.

Under Title 42, there was no penalty for people who were caught crossing illegally and quickly expelled, so many people made multiple attempts to enter the country. When Title 42 terminated, the pre-pandemic rules for enforcing immigration went back into effect. Those rules, governed by the umbrella immigration statute of Title 8, include a 5-year bar on reentry for people who are deported as well as escalating criminal penalties. Equally important, under the new asylum rule that went into effect when Title 42 lifted, people who cross the border without authorization and have not sought — and been denied — asylum in a country through which they transited are presumptively ineligible.

People working on both sides of the border have indicated that migrants understand they may face more severe long-term consequences from these changes — a five-year ban on reentry, criminal penalties, and ineligibility for asylum — which is leading many to “wait and see” or pause their journeys so they can attempt to schedule asylum appointments using the CBP One app.

The diminished number of attempted crossings does not, however, mean that migration is decreasing overall or that the drop in apprehensions will be permanent. Migrants continue to arrive in large numbers in Mexico, and the Mexican authorities have been moving migrants from its northern and southern borders to the nation’s interior. And, while those migrating to the U.S. through other countries in the region, like Honduras, have declined slightly since Title 42’s end, the numbers still remain at historic levels.

This effort to incentivize an orderly process, where people seek asylum through ports of entry, is exactly what the Biden Administration is striving to achieve. It is a worthy goal in the abstract. However, the opportunities to seek an asylum appointment through the CBP One app remain far too limited. The number of appointments available each day is a fraction of what’s needed for those seeking to make them and asylum seekers can still only apply for an appointment in central and northern Mexico.

On May 5, CBP announced that they were making a number of improvements to their app, including increasing the number of appointments available to approximately 1,000 each day, and prioritizing noncitizens who have waited the longest. But those numbers are still far too low to meet demand, and the effective bar on applying for asylum outside that system jeopardizes our moral and legal commitments to protect those fleeing persecution.

Rather than remain in dangerous conditions on the Mexican side of the border, waiting for the chance to make an asylum appointment, some people may again attempt to cross the border undetected — and smugglers are taking full advantage by hiking costs. According to a recent article from the Dallas Morning News ($), “smuggling fees can cost $1,500 to $5,000 just to cross the Rio Grande or the land border in New Mexico”. For most migrants, that is an exorbitant sum at the end of an exploitive trek just to reach the border.

Time will tell if the Administration’s efforts to supplant Title 42’s extremism succeed in promoting a more orderly system. But we can be sure that without a massive expansion of the CBP One app and significantly broader legal channels, desperate people will continue to confront dangerous journeys to and across the southern border.

Americans Embrace Solutions Beyond the Border

In a piece I co-authored with Dan Restrepo, we argue for a larger lens in both evaluating and setting U.S. migration policies. Only by broadening our perspective can we see the full extent of the challenge and begin generating innovative responses.

To its significant credit, the Biden Administration has taken unprecedented steps in that direction. By championing last year’s Los Angeles Declaration on Migration and Protection, agreed to by 22 countries at last June’s Summit of the Americas, the Administration embraced solution sets needed to grapple with the complexities of this migration phenomenon.

Both the LA Declaration and a plan put forward by Senator Bob Menendez last month advance the core concept of shared hemispheric responsibility and recognize “that to effectively maximize the benefits and mitigate the risks of migration requires multiple, bold, scaled responses — at the border, in the Americas, and in the United States.”

A central pillar of that objective is creating new legal pathways that will enable people to move to and work in different countries without having to make perilous trans-continental treks. For the United States, this has been an ongoing challenge given Congress’s decades long failure to modernize our legal immigration system and create more flexible, adjustable legal channels.

Understanding that creating order at the border requires acting on multiple fronts simultaneously, the Administration has leaned into its authority to admit individuals on “parole”. As we’ve shared before, these new parole programs enable U.S. citizens to sponsor 30,000 individuals each month from Cuba, Haiti, Nicaragua, and Venezuela.

Some critics, however, were skeptical there would be sufficient demand by everyday Americans to sponsor individuals from those countries. To the stunning contrary, now entering its sixth month, there have been more than 1.5 million requests filed by individuals hoping to sponsor the entry of these migrants. Americans are hungry and willing to welcome newcomers, a stark counter-narrative to the politics of division reflected in the recent busing stunts by Governors Abbot and DeSantis. The Biden Administration should continue creating innovative solutions like this, while also leaning into solutions like Temporary Protected Status (TPS) to unlock the potential of people already here in the U.S.

As this section and the note above on Title 42’s demise highlight, Congressional failure to overhaul the system in a way that meets the challenges and opportunities of the 21st century has forced executive branch contortions. There are deep limits to what an administration can accomplish when attempting to manage on the ground realities with the tools of a broken system.

This is why we welcomed introduction of the bipartisan Dignity Act of 2023– it is a reminder that there should be sufficient common ground to comprehensively reform our immigration regime. While there are plenty of concerns with the bill, the effort to move the policy conversation beyond the binary border debate is a breath of fresh air, even if it is unlikely to receive any consideration in the Republican-controlled House. It also reflects the desire of the American public for common-sense solutions that enable us to embrace our dual identity as a nation of laws and a welcoming nation of immigrants.

Compensating for Congressional Failures – See, e.g., DACA

Agency efforts to navigate the broken immigration system against the backdrop of congressional paralysis continue to be challenged in court. This perpetuates a preposterous dynamic whereby the executive branch must stretch its authorities to manage the fallout of a failing system, only to have the judicial branch curb those efforts and establish different policies under the guise of legal analysis.

This ping-ponging of immigration policy between the executive and judicial branches, while the one branch responsible for making our immigration laws remains on the sidelines, would be comical if not so deeply harmful. Indeed, it suggests the dysfunction of our immigration system is matched (or surpassed) by that of our political system.

One of the most heartrending examples of this failure is the Deferred Action for Childhood Arrivals (DACA) program. In the face of Congressional failures to pass the DREAM Act for a decade, DACA was originally established via executive action in June 2012 to protect certain undocumented immigrants who were brought to the U.S. as children from removal and to provide work authorization for renewable two-year periods. President Trump sought to terminate the highly successful program in September 2017, and it has been tied up in litigation ever since.

Today, a federal judge in Texas will hold a hearing in the case challenging the legality of the Biden Administration’s DACA regulation. The regulation at issue was announced in August 2022 and was designed to preserve and fortify the original DACA program against the lawsuits that were pending. While it has likely failed in that regard, it has bought more time for individuals with DACA to maintain and renew their current protections. Based on earlier rulings, however, new applicants to the program continue to be frozen out.

Nearly 600,000 Dreamers had active DACA status as of September 30, 2022 and an estimated 400,000 DACA-eligible Dreamers are currently frozen out and unable to access DACA protections. These undocumented youth face an increasingly fraught future. After the current case in Texas winds its way through the courts, the program is likely to be struck down in its entirety by the Supreme Court in one of its upcoming terms. That means that virtually all undocumented students going to college this fall do so without the protections guaranteed by DACA. It also means that they are largely ineligible to work in order to help offset the costs of education, not to mention the post-graduation implications of holding a degree with little ability to leverage it by joining the labor force.

And yet, as always, given these unfavorable circumstances, these young leaders continue to prove resilient and courageous. Rather than accept the unfair and unjust status quo, undocumented youth organizers at UCLA — including Emerson Collective Intern alumnus (2020) Abraham Cruz Hernandez — launched the Opportunity for All campaign to pressure the University of California system to allow them to work. A new legal analysis by scholars at UCLA contends that the 1986 federal law that made it illegal to hire undocumented people doesn’t apply to state governments, meaning it also does not apply to state universities.

Last week, the UC Regents unanimously agreed with the students and have organized a working group focused on implementing the new program, enabling these students to secure lawful employment through the university. The potential implications are sweeping, especially if adopted by both other state universities as well as other state governments.

Of course, this is yet another workaround forced by Congress’s failure to reform our immigration laws, but it is also a testament to the creativity, resilience, and heart of these young leaders that they continue to organize and surmount the unconscionable barriers the U.S. continues to erect in front of them.

In addition to DACA, it bears noting that ongoing litigation continues to threaten the parole program and the ACLU filed suit against the newly minted asylum rule. All three of these initiatives — and the resulting litigation — were only made necessary because of congressional inaction. American politics are broken and nowhere does that show up more clearly than congressional paralysis on issues that have clear public support, like immigration reform. The side-effects of that dysfunction are that the executive and judicial branches of the federal government are thrust into roles for which they are ill-suited and constitutionally hamstrung.

Inaction is hurting the lives of millions of people, holding back our economy, dimming the nation’s future, and souring the public’s trust in government. It is unsustainable and our immigrant friends and neighbors deserve better.

As we look ahead to Immigrant Heritage Month, I want to take a moment to appreciate where we are in this journey to advance humane, welcoming policies that embrace core American values. Yes, our federal immigration politics and policies are broken, but leaders on this issue are emerging at all levels, including in cities, states, and — yes — university systems. We have an Administration that embraces the core concept of shared hemispheric responsibility for managing migration safely and humanely and is actively working toward solution sets to help ease the burden on migrants and local communities. We are also amongst amazingly kind people, average Americans who generously and eagerly raise their hand to support migrants when given the opportunity.

While there are many areas of disfunction in the U.S. immigration system, as well as disagreement on this issue among rational adults, we welcome the opportunity to embrace our shared values and to admire the strength and spirit of immigrants that have coursed through generations of families, enriching our Nation. Happy Immigrant Heritage month!

In solidarity,

Marshall Fitz

Managing Director of Immigration