Biden administration proposal expands Title 42 and the parole ticking time bomb—01-09-23

Immigration news, in context

This is the 148th edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

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This week’s edition:

• In The Big Picture, we delve into the Biden administration’s expansion of Title 42 and creation of new parole processes for Cuban, Haitian, and Nicaraguan nationals.

• In Under the Radar, we discuss a recent report that tracked migrants using cell phone data.

• In Next Destination, we analyze a Supreme Court case that will consider if a law barring the encouragement of illegal immigration is constitutional.

The Big Picture

The news: In a wide-ranging announcement about border policy and a rare Biden Q&A on the subject, the White House laid out a plan to expand the use of Title 42 expulsions in exchange for additional humanitarian parole programs for people from Nicaragua, Haiti, and Cuba. The effort mirrors an earlier move with Venezuelan asylum seekers, with the administration using the same double-speak: excluding thousands of people from their legal right to seek asylum, while offering instead limited access to an inferior program that doesn’t lead to permanent residency.

In doing so, the administration continues the common obfuscation of implying that having illegally crossed the border somehow precludes someone from being able to seek humanitarian assistance, when asylum law itself very clearly lays out the opposite. The announcement also touts the expanded use of expedited removal, a supposed commitment to increasing refugee admissions from Latin America and the Caribbean, and coordination with third countries as part of the broader border externalization strategy.

While humanitarian parole does provide a relatively easy pathway to allowing people to enter the country without the long-winded, convoluted processes of asylum and refugee admissions, this process presents its own significant problems, mainly the creation of an entire underclass of humanitarian migrants that have not been formally admitted as such and lack the legal protections and privileges that a more robust program like asylum affords. In expanding this pool of people, the administration is setting itself up for some rather thorny issues down the line.

Under the Radar

Heritage Foundation reportedly tracked 30,000 migrants via cell phone data

The Heritage Foundation, a conservative think tank, recently published a report on nongovernmental organization’s role in the “movement of illegal aliens through the United States” based on location data from more than 30,000 cell phones, Texas Public Radio reports. 

Migrants’ locations were determined via “geofencing,” the report states. Researchers effectively used cell phone data to trace migrants’ movements across the country, zeroing in on the offices of NGOs across the country that help migrants and other asylum seekers to prove that “a host of NGOs are actively facilitating the Biden border crisis.” The report does not state how Heritage obtained the cell phone data, and the group declined to tell Texas Public Radio where the data came from. 

Experts have expressed concern about Heritage’s methodology and data collection methods, noting that migrants released into the interior are assigned “SmartLink” devices under ICE’s Alternatives to Detention Program. The devices are issued and operated by a subsidiary of the GEO Group, a prison company that runs a number of ICE detention facilities. In a statement, GEO said that it has “no knowledge of the Heritage Foundation’s methodology or how it obtained the information for its report,” adding that “it did not come from GEO or any of its subsidiaries.”

Next Destination

SCOTUS to rule on constitutionality of law prohibiting encouragement of illegal immigration

The court will hear arguments in a case involving 8 U.S.C. 1324(a)(1)(A)(iv), which establishes criminal penalties for anyone who “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.” While the rest of the statute generally deals with more straightforward actions to encourage illegal immigration, such as transporting or concealing undocumented immigrants, the criminalization of mere encouragement has a clear conflict with the First Amendment.

Justices actually heard arguments in a separate case involving the same law in 2019, but at the time declined to rule on the broader question of the law’s constitutionality. The Biden administration has said that striking down the law would interfere with its nationwide management of immigration laws, but the plaintiffs and civil libertarians argue that the range of applicable cases is absurdly broad. Couldn’t, for example, someone be plausibly accused of a crime for telling an undocumented immigrant they can seek shelter from a storm, or telling a family member they would be sad if they were forced to leave the country?

The plaintiff isn’t particularly sympathetic here; Helaman Hansen was convicted of mail and wire fraud for running a hoax on undocumented immigrants, falsely telling them he could get them citizenship. However, the case could throw out the law altogether, including for social services organizations and even legal providers who’ve raised concerns that they could be targeted.

The Big Picture – Premium

What’s happening?

We’ve written at length about pretty much every aspect of the Title 42 program, including its formal legal rationale, its real-world implementation, the significant legal questions surrounding it, and the litigation that has engulfed it throughout its existence. As things stand, Title 42 inhabits a bit of an oddball liminal space in the administration’s policy-making: the Biden administration is, simultaneously, attempting to terminate Title 42, appealing a decision ordering that it be terminated on the grounds that it was nonetheless legally implemented, and constantly expanding the program it is both defending and trying to end.