Calls for Biden to restore asylum procedures amplify after court blocks border policy

The order to end Title 42 is on hold as the Biden administration works to implement an “orderly transition” but calls for reform are already gaining traction. And while advocates for migrants are happy with the decision, Texas Republicans said the decision will lead to chaos at the border.

Immigrant rights groups are putting pressure on the Biden administration to return to normal asylum policies after a federal judge struck down the pandemic-era immigration policy known as Title 42. (Paul Ratje for KERA News)

By Julián Aguilar, The Texas Newsroom

Immigrant rights groups are putting pressure on the Biden administration to return to normal asylum policies after a federal judge struck down a pandemic-era immigration policy that allowed U.S. border agents to expel asylum seekers back to Mexico.

The policy, known as Title 42, was first used by the Trump administration in 2020 in what they said was an effort to help contain the spread of COVID-19. The policy was kept in place by President Joe Biden despite opposition by Democrats and several immigrant rights organizations — and the White House’s attempts to dismantle other Trump-era policies.

On Tuesday U.S. District Court Judge Emmet Sullivan said the Title 42 policy was “arbitrary and capricious.” 

Though he said that the Centers for Disease Control and Prevention — which initiated the order — had a right to try and contain the spread of the virus, the judge said the CDC should have considered a policy less severe than expelling migrants back to Mexico, NPR reported. Sullivan also said the CDC didn’t consider to the harms to those migrants, or serve its stated purpose because millions of other travelers were allowed into the U.S.

Early Wednesday, the judge temporarily put his order on hold after the Department of Homeland Security requested time to “for an orderly transition to new policies at the border.” The stay of the order is in place for five weeks.

But advocacy groups are wasting no time in urging Biden to ease up on his border policies in the wake of the ruling.

“The court’s decision is clear: Migration management does not allow the U.S. government to trample the rights of asylum seekers and ignore the dangers that befall those blocked and expelled,” said Yael Schacher with Refugees International in a statement

“As it restarts asylum processing at the border, the Biden administration must use procedures that actually prevent wrongful removal to harm and give those seeking safety at the southwest border a true chance to gain refuge in the United States.” 

Advocates are also monitoring whether the decision will swell the population in immigration detention.

“Immigration detention is already growing at an alarming rate. In just two years, the Biden administration has doubled the number of people in detention and quadrupled the number of people enrolled in ICE’s so-called ‘alternatives to detention’ program,” Silky Shah, the executive director of Detention Watch Network said in a statement. 

“As Title 42 comes to an end, the Biden administration must act boldly to uphold its promise to immigrant communities by scaling back the use of immigration detention and surveillance.”

It’s still unclear what the Biden administration plans to do to ease back into pre-pandemic policies. But the Department of Homeland Security said they’ll continue working with foreign governments to curb the spread of unauthorized crossings.

“We continue to work with countries throughout the Western Hemisphere to take enforcement actions against the smuggling networks that entice migrants to take the dangerous and often deadly journey to our land borders and to address the root causes of irregular migration that are challenging our hemisphere as a whole,” the agency said in a statement.

On Wednesday after the order was paused, DHS officials said border agents will continue to expel most migrants.

“While the stay is in effect, DHS will continue to process individuals in accordance with the CDC’s Title 42 public health order and expel single adults and family units encountered at the Southwest Border,” a statement reads.

Attorneys are “enormously pleased” with the ruling.

Lee Gelernt, an attorney with the American Civil Liberties Union who was the lead counsel on the case, said the decision means the government will revert to allowing asylum seekers to have their day in court.

“We are enormously pleased with this ruling. Title 42 has had far longer staying power than we had hoped or envisioned, but this will hopefully end Title 42 and restore the country’s commitment to providing asylum seekers with a hearing,” he told NPR. “One thing that most people don’t recognize is that Title 42 does not even provide a hearing for desperate asylum seekers. This country has been turning away tens of thousands of desperate asylum seekers, including children and families, without even providing them with a hearing. It is inconsistent with our values and inconsistent with our law.”

But Texas Republicans took aim at the decision and said it would lead to more chaos at the border.

“This will further signal to cartels, human smugglers, & illegal immigrants that the border is wide open, inciting more violence & lawlessness. Disastrous,” Abbott said in a Tweet Tuesday.

On Wednesday Abbott — who launched Operation Lone Star, a state-led and funded border security operation that started in early 2021 — doubled-down on the state’s enforcement efforts.

“Until Congress acts or the Biden Administration does its constitutionally required job, Texas Guardsmen and Troopers must bear the burden of securing the border,” Abbott wrote in a letter to the Texas DPS. 

The operation includes the deployment of the Texas National Guard and the Texas Department for Public Safety to the border to apprehend migrants who cross between ports of entry.

“You must continue to keep Texans and Americans safe and protect against an invasion of the southern border,” added Abbott. “I order you to use all resources and tools available to repel immigrants from attempting to cross illegally, arrest those who cross illegally and return them to the border, and arrest criminals who violate Texas law.”

Also on Wednesday, Abbott wrote Biden and demanded the White House revert to prior policies, according to the governor’s office.

“You must reinstate the policies that you eliminated, or craft and implement new policies, in order to fulfill your constitutional duty to enforce federal immigration laws and protect the States against invasion,” said Abbott. “Two years of inaction on your part now leave Texas with no choice but to escalate our efforts to secure our State.”

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