End of Title 42 looms after court order—11-28-22
Immigration news, in context
This is the 146th 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 discuss a ruling directing the government to end the Title 42 program and its potential aftermath.
In Under the Radar, we look at the possibility that a Republican-controlled House will move to impeach DHS Secretary Alejandro Mayorkas.
In Next Destination, we examine an upcoming Supreme Court decision that could have far-reaching consequences for immigration prosecutorial discretion.
The Big Picture
The news: After over two years of legal back-and-forth, a federal judge has formally ordered the administration to terminate the so-called Title 42 program, which since March of 2020 has been utilized by both the Biden and Trump administrations to expel would-be asylum seekers without due process hundreds of thousands of times. The order comes from a federal district judge in a long-running lawsuit filed by the ACLU, and the legal reasoning might have broader implications for federal immigration policy.
The order doesn’t mean that Title 42 is gone immediately. Judge Emmet Sullivan has granted an unopposed motion by the government to stay the order until December 21 to give it time to work out the logistics of processing what will certainly be thousands of people in the immediate aftermath of the order being lifted. There are a few ways that it could go about it, ranging from very enforcement-heavy to more focused on streamlining and improving the system. A memo Homeland Security Secretary Alejandro Mayorkas authored in April gives us a better indication of the approach.
Administration lawyers have indicated they don’t plan on appealing, but that doesn’t mean no one is trying to: a group of fifteen states that had previously sued the administration over its earlier effort to terminate Title 42 have filed motions to intervene in the case and are requesting a stay pending appeal. So, while the federal government is no longer defending the policy in court, the litigation might not end.
Under the Radar
Republican members of Congress call on DHS head’s impeachment
California Rep. Kevin McCarthy, who may soon become the Speaker of the House, has called on Homeland Security secretary Alejandro Mayorkas to resign. If he doesn’t, McCarthy said, the soon-to-be Republican-controlled House will move to impeach him. In a statement to CBS News, a DHS spokesperson said Mayorkas has “no plans to resign” and added that if members of Congress are unhappy with the situation at the border, they “should come to the table and work on solutions for our broken system and outdated laws, which have not been overhauled in over 40 years.”
Chris Magnus, the former head of Customs and Border Protection, recently resigned after reports emerged that the Biden administration was unhappy with his performance. Magnus had attempted to focus on overhauling CBP’s internal culture and implementing more humane policies, but he was also tasked with upholding Title 42. This internal contradiction contributed to a situation in which the Biden administration was simultaneously expelling migrants by the thousands each day and allowing some migrants to enter the country to file asylum claims—not out of humanitarian concern, but largely because Mexico wouldn’t accept the expulsion of nationals of certain countries.
The media has focused on the notion of a “crisis” at the number, and while there are undoubtedly more people attempting to cross, the conservative perception that Mayorkas has implemented “open border” policies at Biden’s request has never been true. Still, by allowing conservatives to dominate the narrative and refusing to lift Title 42, which has contributed to the chaos at the border rather than helped curb it, the administration has created the conditions for mass dissatisfaction with its policies from both the right and the left.
SCOTUS to begin hearing arguments on ICE priorities case
The Supreme Court will hear arguments on United States v. Texas this week. The case regards ICE’s use of prosecutorial discretion, specifically the interim enforcement ICE priorities the Biden administration announced in February 2021 and finalized that fall, which required ICE to prioritize the arrest and deportation of people who “pose a threat to national security, public safety, and border security and thus threaten America’s well-being.”
The attorneys general of Texas and Louisiana sued the administration in a federal court in Texas, and in June of this year a federal judge ruled in their favor. Judge Drew Tipton, a Trump appointee, threw out DHS secretary Alejandro Mayorkas’s enforcement priorities, basically spitting in the face of the concept of prosecutorial discretion. The administration appealed Tipton’s decision and asked the Supreme Court to let it implement the new priorities, a request the judges denied in a 5-4 vote. The Supreme Court will now decide whether to uphold Tipton’s decision, which could have severe, far-reaching consequences for future administrations.
Discretion is not a new concept in the immigration world; administration after administration has understood that it can’t arrest and deport every unauthorized migrant and has implemented enforcement priorities as a result. Trump was the first president to eradicate these priorities, and in February 2017 ICE agents were for the first time instructed to arrest “all deportable aliens” encountered in the course of their duties. If the Supreme Court upholds Tipton’s decision, the entire concept of discretionary immigration enforcement could be in jeopardy.