Why Judges Basically Dictate U.S. Immigration Policy Now

When Texas Attorney General Ken Paxton filed a new lawsuit against the Biden Administration last week challenging the allegedly “unlawful” move to grant asylum officers authority to decide some asylum cases, no one was surprised. It’s the 11th immigration-related lawsuit Paxton has filed against the Administration since President Biden took office.

The Texas attorney general’s enthusiasm for litigation is not unique. Since the 1990s, Congress has not been able to effectively reform U.S. immigration systems. This has led to immigration policy being increasingly affected by legal challenges. Experts tell TIME that a slew of federal immigration-related lawsuits has been filed in recent years by conservative and liberal attorneys generals as well as nonprofit groups and individuals. This resulted in an explosion of complicated and sometimes contradictory court rulings. With Congress on the sidelines, federal judges are now on the frontlines of interpreting and dictating the scope of executive actions, federal guidelines and agency rules—thereby determining how U.S. immigration policy actually works.

“This is a manifestation of our broken immigration system,” Stephen Yale-Loehr, professor of immigration law at Cornell University, tells TIME. Congress’s failure to pass comprehensive immigration reform has resulted in an explosion of agency rules and executive actions—which, in turn, lead to more legal challenges, he says. “Today, almost every executive action on immigration is being challenged in the courts.”

This ad-hoc system has resulted, both at the U.S.-Mexico border and within government agencies, in “peak confusion,” says Theresa Cardinal Brown, managing director of immigration and cross-border policy at the Bipartisan Policy Center (BPC), a Washington think tank. Following their publication, new federal regulations or guidelines are sometimes blocked, terminated or forcibly reinstated. Sometimes, these restrictions and requirements come with additional requirements. Government officials, immigration lawyers, and lay people are often baffled about the contours of U.S. law, says Elora Mukherjee, professor of law at Columbia University and director of the school’s Immigrants’ Rights Clinic.

Continue reading: The Battle Over ‘Remain in Mexico’ Shows How U.S. Immigration Policy Has Reached ‘Peak Confusion’

Yale-Loehr states that giving judges such power over immigration policy puts the U.S. judiciary in an awkward spot. Federal judges are often wary of being drawn into issues of national sovereignty or of ruling in a way that impinges on the executive branch’s authority to conduct foreign policy. They often are forced to make tough decisions. “Courts are loath to weigh in,” Yale-Loehr says.

Supreme Court Justice Stephen Breyer recently questioned his court’s role in ruling a case regarding Trump-era policy, Migrant Protection Protocols. (MPP) requires that the Biden Administration negotiate with Mexico over the return of migrants to Mexico for asylum hearings. Breyer cautioned his colleagues to be cautious during oral arguments on April 26. “Foreign affairs is involved,” he said. “And, Judges, this is above your pay grade, okay? Stay out of it as much as you can.”

Were we meant to be here?

While immigration litigation has existed for many decades, some experts believe that 2016 was the moment when they opened.

A case by Texas was brought to the Supreme Court challenging whether an Obama Administration executive action, known as Deferred Activity for Parents of American and Lawful Permanent Resident (DAPA) could be reopened. The Supreme Court decided 4-4. (Justice Antonin Scalia died in February 2016 and had not been replaced. DAPA (an expanded version of Deferred Activity for Childhood Arrivals) would have given protection to deportation some parents who illegally arrived in the U.S. The tie vote meant the lower court’s decision blocking DAPA remained in place—a very high-profile win for Texas. This victory was a major milestone for the other attorneys general over the next several years.

When President Donald Trump was inaugurated, it was the liberals’ turn at bat. Within days of Trump taking office, the ACLU brought a suit challenging the new Administration’s ban on foreign nationals from seven predominantly Muslim countries from visiting the U.S. Over the course of his tenure, the Trump Administration was sued hundreds of times over immigration policies. According to CalMatters’ analysis, the Trump Administration was sued by Xavier Bacerra (a Democrat), 110 times, and by at least 400 cases by the ACLU. The suits referred to a wide range of executive policies including immigration, environmental and others.

The Trump Administration’s rapid progress on immigration matters is another reason behind the recent upsurge in court cases. He enacted 472 new immigration policy policies over the course of his presidency according to the Migration Policy Institute. This bipartisan research institute is a source of information. That “unprecedented pace” begot an unprecedented wave of new lawsuits. “That really accelerated the legal challenges,” Yale-Loehr says.

Liberals were left behind after the inauguration of President Biden. Conservatives took up their place. “Conservative states are suing every chance they get to challenge everything that the Biden Administration is doing on immigration,” Yale-Loehr says.

Uncertainty at U.S. Borders

Texas Attorney General Paxton’s most recent lawsuit targets the Biden Administration’s tweak to asylum processing designed to eliminate immigration court backlogs. It is believed that by allowing asylum officers, instead of always depending on immigration judges, the waiting time for asylum cases can be reduced from a few years to just a few months. On March 24, the Department of Homeland Security and Department of Justice announced that the change would be in effect. Texas sued on April 28.

The asylum tweak coincides with the Administration’s attempt to end Title 42, a controversial COVID-19 health measure implemented in March 2020 that the government has used to immediately expel thousands of migrants, including those planning to claim asylum. DHS expects an increase in asylum-seeking and migration flows due to Title 42 expulsions ending on May 23. DHS believes that giving asylum officers power to determine some cases can help reduce the U.S.-Mexico migration.

But at this point, that entire policy—the Administration’s move to end Title 42, as well as its move to mitigate the effects of ending Title 42—are mired in court. Arizona, Missouri, Louisiana and Missouri sued the Administration to stop them from ending Title 42. The states’ challenge came on the heels of another lawsuit, brought by the ACLU and other organizations, demanding that the Biden Administration end Title 42 immediately.

This confusion has led to a patchwork effect of temporary policies. D.C. Circuit Court of Appeals ruled on March 4 that DHS could expel migrants in violation of Title 42 but not allow families to return home to a country they fear persecution or torture. That same day, Texas District Court Judge Mark Pittman ruled that the Biden Administration can’t exempt unaccompanied migrant children from Title 42 expulsions.

“That kind of back and forth is just terrible for any sort of consistency or continuity in any policy,” Cardinal Brown says.

Meanwhile, the Supreme Court will weigh in this summer on whether the Biden Administration can end MPP, also known as “Remain in Mexico” policy.

Continue reading:What the Biden Administration does to key immigration policies

Congress failed to adopt any immigration reform.

President Joe Biden sent an immigration reform bill to Congress on his first day in office, but it hasn’t gone anywhere. On Sunday, Democratic Sen. Bob Menendez of New Jersey, the bill’s lead sponsor, told Politico that there is “zero” chance immigration reform will come this year, even though Democrats hold a slim majority in the House and Senate.

The odds of passing Biden’s comprehensive immigration reform bill may worsen after the midterms, when Democrats are widely expected to lose seats.

According to Roll Call, last week, Senators from both parties, including Dick Durbin (Ill.), Alex Padilla (Calif.), Thom Tillis (N.C.) and John Cornyn (Texas), resumed talks about passing immigration legislation. Even though their efforts will not go far, Americans might be glad to hear that they are still discussing immigration issues. Pew Research Center’s 2020 survey found 75% support legalizing citizenship for those undocumented. That includes 57% Republicans, those leaning Republican and 89% Democrats, those leaning Democratic.

“The American public overwhelmingly supports immigration,” Mukherjee of Columbia says. “The challenge is that our Congress is not functional.”

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