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Courts Deliver Setbacks to Biden Administration Immigration Agenda


Asylum-seeking migrant families sit on the ground as an U.S. Border Patrol agent checks on them after crossing the Rio Grande river into the United States from Mexico in Roma, Texas, Aug. 14, 2021.

While the Biden administration focuses on the Afghanistan evacuation crisis, serious problems fester at the U.S.-Mexico border with increasing numbers of unaccompanied children and two important court rulings complicating the administration’s efforts to implement its immigration policies.

The most recent border numbers show that in July authorities encountered an "unprecedented number of migrants" at the southern border. There were about 212,672 encounters, among them 154,288 who were first-time crossers. The data included nearly 19,000 unaccompanied children — an increase of 24% over June.

Most migrants detained at the border are expelled under Title 42 — a guideline put in place during the Trump administration that gives border officials authority to expel migrants who illegally crossed into the country during the coronavirus pandemic.

Unaccompanied minor migrants wait to be transported by the U.S. Border Patrol after crossing the Rio Grande river into the United States from Mexico in Roma, Texas, Aug. 14, 2021.
Unaccompanied minor migrants wait to be transported by the U.S. Border Patrol after crossing the Rio Grande river into the United States from Mexico in Roma, Texas, Aug. 14, 2021.

‘Remain in Mexico’ Ruling

On Thursday, the U.S. Fifth Circuit Court of Appeals denied the Biden administration’s attempt to halt a Texas judge’s ruling demanding the government resume a controversial Trump-era border policy known as Migrant Protection Policy (MPP) — the so-called “remain in Mexico” measure.

Former President Donald Trump’s White House announced the directive in 2019, which gave border patrol agents power to send non-Mexican asylum-seekers to Mexico, where they had to wait for their asylum cases to be reviewed and processed by U.S. immigration courts, rather than allowing them to stay in the U.S.

Human rights activists said an estimated 68,000 migrants were sent back to Mexico under the policy and were often assaulted, kidnapped and extorted. Fewer than 2% won their cases in U.S. immigration courts.

The Biden administration deemed the directive excessively harsh and ended the program earlier this year. But Texas and Missouri sued the government in April arguing that ending MPP led to a significant increase in migrants at the southern border that added to the states’ costs of dealing with migrants.

Department of Justice attorneys argued that to reinstitute the policy, Mexico must cooperate with the U.S. In the past, Mexico border towns have refused to accept migrants returned under MPP.

In the order, the court of appeals acknowledged the complications and said, "The injunction only requires good faith on the part of the United States — if the government's good-faith efforts to implement MPP are thwarted by Mexico, it nonetheless will be in compliance with the district court's order, so long as it also adheres to the rest of the statutory requirements."

The next step for the Biden administration is to file an appeal with the U.S. Supreme Court.

People queue to cross to the United States at San Ysidro crossing port on the Mexican side of the US - Mexico border in Tijuana, Baja Caifornia state, on Aug. 20, 2021.
People queue to cross to the United States at San Ysidro crossing port on the Mexican side of the US - Mexico border in Tijuana, Baja Caifornia state, on Aug. 20, 2021.

Enforcement priorities

Another court ruling coming from Texas presented an additional setback for the Biden administration.

U.S. District Court Judge Drew Tipton blocked a recent “enforcement priorities” directive that guides immigration agents regarding who they should prioritize for detention and deportation from the country.

Tipton, a judge appointed by Trump, prohibited directives from being implemented that ordered Immigration and Customs Enforcement (ICE) agents to focus more narrowly on arresting certain types of immigrants.

Tipton concluded that ICE’s enforcement priorities should have been implemented through regulations that were open to public comments, and therefore were in violation of federal administrative law.

In his 160-page ruling, Tipton said some priorities could lead ICE officers to infringe on laws that guide the detention of foreign nationals the government attempts to deport.

For decades, every presidential administration has issued ICE enforcement priorities that fit with their immigration plan. Biden’s memos were issued in January and February.

Biden enforcement priorities

Under Biden’s "enforcement priorities," ICE agents were asked to get supervisory approval before arresting undocumented immigrants living in the U.S. who did not fall within three specified categories: migrants that pose a threat to national security, who have crossed the border since November 1, or who committed "aggravated felonies."

Biden officials say it is important to allow ICE agents to focus their limited resources on arresting immigrants within U.S. borders who have been convicted of serious crimes or are a threat to national security.

Tipton ordered the administration to file monthly reports on immigrants who were released from custody and not immediately detained by ICE, and to also submit by September 3 a court filing with "specificity what guidance, protocols, or standards control the detention of these aliens in light of the fact that the Memoranda have been enjoined.”

It is unknown if Biden officials will appeal this decision. An ICE spokesperson told VOA “As a matter of practice, ICE does not comment on pending litigation.”

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    Aline Barros

    Aline Barros is an immigration reporter for VOA’s News Center in Washington, D.C. Before joining VOA in 2016, Aline worked for the Gazette Newspapers and Channel 21 Montgomery Community Media, both in Montgomery County, Md. She has been published by the Washington Post, G1 Portal Brazilian News, and Fox News Latino. Aline holds a broadcast journalism degree from University of Maryland. Follow her @AlineBarros2.

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