Supreme Court Worries that ‘Remain in Mexico’ Interferes with Foreign Policy
The U.S. Supreme Court on Tuesday heard arguments over whether the Biden administration can end a Trump-era border policy that forced asylum seekers to wait in dangerous shanty towns in Mexico for their U.S. immigration court hearings.
The Migrant Protection Protocols (MPP), most commonly referred to as “Remain in Mexico,” went into effect in January 2019, and was suspended and then formally ended by President Biden in January 2021. However, the states of Texas and Missouri sued the administration in April 2021 in an effort to force the program back into effect.
A federal judge in Texas sided with the two states’ misunderstanding of a federal immigration law, and the Biden administration appealed. In a widely criticized opinion, the appeals court rejected the government’s second attempt to end the program, upending decades of administrative and immigration law in the process. The Biden administration appealed again.
At oral arguments, the justices focused on what Congress intended when it passed the law at the root of the case, and whether the government has discretion to decide what to do with asylum seekers it cannot jail.
One of the most important considerations for the justices and for the Biden administration, however, is the way MPP interferes with the President’s power to conduct foreign affairs.
As Justice Elena Kagan said to the attorney for Texas at one point, “you’re putting the [DHS] secretary’s immigration decisions in the hands of Mexico,” because the U.S. would not be able to comply with the lower court’s ruling if Mexico does not cooperate. Justices pushed back against the idea that a state could “basically tell the [President] how to implement its foreign and immigration policy. And that’s what this does.”
U.S. Pledges Ongoing Support for Ukraine, Plans to Reopen Embassy
The Biden administration made a series of announcements this week pledging ongoing American support of Ukraine as the war with Russia enters its third month.
On Monday, a State Department official said the U.S. planned to reopen its embassy in Kyiv after closing diplomatic operations days before Russia invaded the country on Feb. 24. American diplomats will begin making trips across the border from Poland to Ukraine this week, and will resume embassy operations in Kyiv within weeks, a State Department official told reporters in Poland.
The United States shut its embassy in Kyiv on Feb. 14, just 10 days before Russia began its military invasion.
President Biden also announced Bridget Brink, the ambassador to Slovakia, as his pick for ambassador to the Ukraine. She will be the first American ambassador to Ukraine since 2019.
The president launched another initiative this week that will allow up to 100,000 Ukrainian refugees to temporarily stay in the United States under a system known as humanitarian parole.
The program, called Uniting for Ukraine, allows Americans, including green card holders, to sponsor Ukrainian migrants if they can prove they can financially support them. If you’re interested in applying, visit the government page for the program.
To read more about this story, see our full article.
Federal Judge Holds Biden to May 23 End for Title 42
A federal judge in Louisiana blocked the Biden Administration from winding down early a Trump-era border policy that automatically turns people seeking asylum away at the U.S.-Mexico border without a hearing.
The Trump administration issued the policy through the Centers for Disease Control and Prevention (CDC) in March 2020 using a century-old public health law found in Title 42 of the U.S. Code. The policy, known informally as Title 42, has resulted in nearly 1.5 million people being summarily expelled from the U.S.-Mexico border in the past two years, including at least 200,000 parents and children, and nearly 16,000 unaccompanied minor children.
The Biden administration had originally kept the policy in place, arguing that expulsions are necessary to prevent the introduction of Covid-19 into the United States, despite criticism from public health experts, the federal courts, and CDC scientists themselves.
However, the administration announced at the end of March that it would end the use of Title 42 by May 23, which would fulfill one of Mr. Biden’s campaign promises. The announcement was met with lawsuits by more than 20 states, including criticism from within the Democratic party.
The Department of Homeland Security (DHS) was beginning to increase regular immigration processing at the southwest border to prepare for the end of Title 42 on May 23. The phasing out of Title 42 practices in favor of regular immigration processing caused the states of Texas, Missouri, and Arizona to ask a federal judge in Louisiana to stop DHS from moving away from Title 42 before May 23. Judge Robert Summerhays granted the states a temporary restraining order on April 27.
The next hearing in the case is scheduled for May 13, 2022.
Biden Administration Continues DACA Fight
The Biden administration is using a recent federal appeals court decision that put the brakes on states’ ability to stop national immigration policies in its fight to lift a judge’s nationwide block on new applications to the Deferred Action for Childhood Arrivals, or DACA program, which grants work authorization and deportation protection to undocumented people who were brought to the United States as children.
Texas District Court Judge Andrew Hanen blocked new applicants from applying to the DACA program in a ruling last July. Lawyers with the Department of Justice, or DOJ, are appealing a district court judge’s decision blocking new DACA applications to the Fifth Circuit Court of Appeals, which covers Texas, Louisiana, and Mississippi.
DOJ lawyers filed a notice with the Fifth Circuit last week, pointing out a recent but unrelated appeals court ruling in the Sixth Circuit that found that a group of states did not have grounds to sue or block the Biden administration’s immigration enforcement priorities.
The Sixth Circuit ruled last week that minor costs to a state because of a federal government program are not enough to give the state standing to block the program. DOJ lawyers hope to draw a line between that ruling and the similar facts in the DACA case, which was also brought by a group of states claiming the program caused them additional costs and burdens.
To read more about this update in the DACA litigation, read our full article.
Foreign Artists and Athletes Struggle to Get Visas
Foreign athletes, artists, and performers applying for U.S. visas are facing processing delays, increased scrutiny, and misapplied or confusing rules that began during the Covid-19 pandemic, even though travel restrictions are decreasing and athletic and artistic events are beginning to ramp back up.
Foreign athletes, artists, and entertainers can seek P visas to enter the United States to participate in a competition or performance, while O visas may be approved for anyone who is recognized for extraordinary ability in their field.
As the Covid-19 pandemic continued, the previous administration added many new restrictions, including for O and P visas. Difficult and burdensome requests for additional evidence (RFEs) by USCIS also increased dramatically, especially for foreign athletes.
O and P visa applicants are also facing extraordinary backlogs at U.S. Citizenship and Immigration Services (USCIS), which processes the initial I-129 petition, as well as at the Department of State (DOS) consulates that issue the actual visa. Many consulates are still closed due to the pandemic, or functioning with minimal staff.
Immigration attorneys say that although O and P visas only make up a small portion of all employment-based visas, they are important to the U.S. in social and economic ways. The visas allow people living in the U.S. to see competitions and performances by the world’s most talented people, while also supporting industries that benefit from their talent. The visas also bring the world’s best and brightest researchers, scientists, engineers, and other STEM professionals to the U.S. to make the next groundbreaking discovery.
As the agency struggles to process these applications in a timely manner, O and P visa applicants can miss out on work, competition, or performance opportunities, while depriving people living in the U.S. of the benefits of these extraordinary people’s talent.