With this series of weekly updates, WOLA seeks to cover the most important developments at the U.S.-Mexico border. See past weekly updates here.
In a scenario that has become common, 20 Republican state governments filed a lawsuit in Texas federal court seeking to block a Biden administration immigration policy. This time, the legal action targets the “humanitarian parole” program that the administration announced on January 5 (see WOLA’s January 6 Border Update).
Since that date, the Department of Homeland Security (DHS) has managed a process allowing up to 30,000 citizens of Cuba, Haiti, Nicaragua, and Venezuela per month to apply remotely—without coming to the U.S. border—for a status allowing them to remain in the United States, with work authorization, for up to two years.
To qualify for parole, migrants must have a sponsor in the United States and possess a passport, two requirements that exclude many would-be applicants for asylum in the United States. (In Haiti, passport requests have more than tripled, to 4,200 per day, overwhelming the government’s passport authority. Reports point to long lines forming at passport offices in Cuba.) As of January 25, about 1,700 migrants from Cuba, Nicaragua, and Haiti had entered the United States legally under the program, administration officials told reporters.
The Biden administration had established a similar sponsor-based parole program in April 2022 for Ukrainian migrants fleeing Russia’s invasion. The states’ lawsuit does not target that similar program.
Under the new parole program, citizens of these countries who fail to apply and instead show up at the U.S. border are now quickly expelled back into Mexico regardless of their asylum needs, with the Mexican government’s agreement, under the nearly three-year-old “Title 42” pandemic authority.
The near impossibility of seeking asylum at the border has caused migration from Cuba, Haiti, Nicaragua, and Venezuela to plummet by 97 percent between December and January, a month of record-high migration levels (see this update’s next section). “Encounters with individuals from these countries dropped from a 7-day average of 3,367 per day on December 11, to a seven-day average of just 115 on January 24,” reads a January 25 DHS release. January is now “on track to see the lowest levels of monthly border encounters since February 2021.” A DHS official told CNN that the overall number of migrants, from all countries, is down “by more than half in January compared to last month.”
During the first three weeks of January, over 14,000 migrants had passed through Panama’s Darién Gap jungles, Panamanian authorities told EFE. That is on track to match or exceed Darién Gap migration in November (16,632) and December (20,297), but to end up well below the nearly 60,000 migrants who passed through this treacherous region in October. January’s Darién Gap migrants come mostly from Haiti (6,459), Ecuador (3,031), and Brazil (562).
“These expanded border enforcement measures are working,” reads a quote attributed to Homeland Security Secretary Alejandro Mayorkas in DHS’s release. “It is incomprehensible that some states who stand to benefit from these highly effective enforcement measures are seeking to block them and cause more irregular migration at our southern border.”
The implication is that Mexico agreed to accept expanded Title 42 land-border expulsions in exchange for the U.S. government establishing a legal process—humanitarian parole—for the affected nationalities. If the parole program should be struck down, there is some likelihood that Mexico would stop accepting expulsions of those nationalities’ migrants, probably resulting in increased migrant arrivals at the border.
The Title 42 expansion, which Mayorkas characterized as “working,” is causing greater hardship on the Mexican side of the border, where these nations’ asylum seekers’ only real option is to apply, using a new app, for a limited number of exemptions from Title 42 (discussed in “Other News” below).
Across from El Paso, Texas, “Many of the migrants expelled by the United States through Ciudad Juárez wander the streets in search of help to survive, staying at the border in the hope of crossing the border,” La Verdad de Juárez reported. U.S. authorities expelled 800 people into Ciudad Juárez during the new policy’s first 6 days, according to data from Mexico’s National Migration Institute (Instituto Nacional de Migración, INM), but that number has since fallen to about 60 people per day.
Since the United States began expelling Venezuelans across the border into Mexico in October 2022, more than 2,000 Venezuelan migrants in Mexico, and more than 6,000 in Panama, have given up and flown back to Venezuela, often with subsidized tickets.
The lawsuit from the Republican state attorneys-general, led by vocally conservative Texas A.G. Ken Paxton and backed by former Trump advisor Stephen Miller’s legal group, argues that the Biden administration’s use of parole is illegal. The ability to grant humanitarian parole, however, was part of the 1952 Immigration and Nationality Act ( INA), the fundamental U.S. immigration law. Asylum was not added to this law until the 1980 Refugee Act.
The provision—Section 212(d)(5)(A) of the INA—allows the President “in his discretion [to] parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States.” This status is meant to be temporary.
Presidents used this power, among other times, to admit 15,000 Hungarians fleeing the Soviet crackdown in 1956, to accommodate 125,000 Cubans during the 1980 Mariel boatlift, and to admit Haitian children orphaned by the 2010 earthquake. Now, though, “the administration’s use of parole is unprecedented both in scale and scope,” The Hill reported. “Biden has made more frequent use of the authority than any other president,” the Washington Post noted.
The Republican states’ brief argues that Biden’s use of parole “amounts to the creation of a new visa program that allows hundreds of thousands of aliens to enter the United States who otherwise have no basis for doing so. This flouts, rather than follows, the clear limits imposed by Congress.” They claim that the January 5 program for Cubans, Haitians, Nicaraguans, and Venezuelans goes beyond the intent of the law, and that it needed to pass through the “notice and comment” procedure of the Administrative Procedure Act (APA), a lengthy process applied to many new regulations.
David Bier of the Cato Institute published a detailed, point-by-point response to the states’ lawsuit filing, defending the legality of Biden’s use of parole authority. Bier recalls that the law specifies no numerical limit on parole.
“While notice and comment rule-making is generally required for major regulatory changes, there is a ‘good cause’ exception for—among other things—emergencies that require urgent action,” wrote Ilya Somin at Reason. “The dangers faced by migrants from the four countries are pretty obviously an emergency.” Somin notes that the governors’ arguments could also be used to undo the Biden administration’s “Uniting for Ukraine” parole program, which is “close to identical” to the procedure for the four Latin American and Caribbean countries.
The state governments’ lawsuit will almost certainly be heard by Trump-appointed judge Drew Tipton in Victoria, Texas, “who has already blocked several Biden administration immigration policies at the request of GOP-led states,” CBS News explained, “including a 100-day pause on deportations in early 2021.”
The states’ strategy is a familiar one. Texas, usually with other Republican-led states, has filed about 25 lawsuits in the federal judiciary’s Fifth Circuit, which covers Texas and Louisiana, against Biden administration policies. Among them are suits to stop Biden’s early deportation moratorium; to compel the administration to reinstate the Remain in Mexico program (later struck down by the Supreme Court); to prolong the Title 42 pandemic expulsions policy; to declare illegal the Deferred Action for Child Arrivals (DACA) program; to challenge the Central American Minors program allowing children to apply for protection in their home countries; to halt vaccine and masking mandates; to oppose limits on firearms; and to block clean water regulations.
The Fifth Circuit is divided into sub-regional divisions. Some of these divisions have so few district judges hearing cases that a plaintiff can be certain which judge will be assigned to hear their lawsuit. In many cases, those judges are deeply conservative, often appointed by Donald Trump. All 25 suits led by Attorney-General Paxton “have been brought in the same six small or single-judge divisions,” University of Texas law professor Steve Vladeck explained on Twitter.
Taking suits to these judges is a method that immigration lawyer David Leopold has called “the anti-immigrant judicial pipeline.” He explained in a 2021 article:
- The Texas Attorney General, Ken Paxton, is usually at the center of initiating these cases often with his fellow GOP AGs;
- They hand-select a right-wing federal judge in Texas, often a Trump appointee with Federalist Society ties;
- Those judges side with the GOP AGs leading to an appeal to the conservative Fifth Circuit;
- From there, it’s up to the now very conservative Supreme Court [which has often granted “stays” keeping the lower courts’ decisions in place while appeals proceed].
Unless the White House and Democrats on Capitol Hill institute changes into the federal judiciary, this is our future on immigration and other progressive issues.
U.S. Customs and Border Protection (CBP) released statistics on January 20 detailing migration patterns at the U.S.-Mexico border in December. These numbers portray a reality at the border that has since changed drastically, with the January 5 expansion of Title 42 sharply reducing several countries’ migration. The December data, though, illustrate some notable trends.
CBP measured 251,487 “encounters” with undocumented migrants at the U.S.-Mexico border last month. That was a 7 percent increase over November’s encounters, and appears to be a record.
CBP encountered 30,306 of those migrants at land-border ports of entry (official border crossings), which are hard for undocumented migrants to access without prior permission. That is the second-highest number ever, exceeded only by April 2022 when ports of entry processed a large number of Ukrainian refugees. An expanding program of Title 42 exemptions has increased the share of migrants who seek asylum at ports of entry, instead of crossing the border without inspection, which is a misdemeanor. 23,035 people sought asylum at ports of entry in December, according to “government data submitted to a federal court” reported by CBS News.
Thanks to this larger share of migrants at ports of entry, the number who crossed between the ports, ending up in the custody of CBP’s Border Patrol component, was 221,181: not the most ever recorded. May 2022 (224,370) saw more Border Patrol “encounters.”
Of the 251,000 encountered border-wide in December, 14 percent “had been previously stopped by U.S. immigration officials in the last 12 months,” CBP noted. The number of unique individuals encountered in December was 216,162. That is the largest “unique individual” total in the 18 months that CBP has reported that figure.
The number of repeat crossers was greater months ago, in mid-2022, often reaching or exceeding 25 percent. A big reason for the decline in repeat crossers is an increase in migrants from countries to which U.S. authorities could not easily expel migrants using Title 42, either because Mexico would not accept them, because they are distant, or because of poor diplomatic relations with their governments.
A record 68 percent of December’s migrants (58 percent of “unique individual” migrants) came from countries other than Mexico, El Salvador, Guatemala, and Honduras. Fully 36 percent of “unique individual” migrants were from two countries: Cuba and Nicaragua. Migration from Cuba (42,637 December encounters) came close to exceeding Mexico (48,179) for first place among all citizenships encountered at the border.
The arrival of migrants from hard-to-expel nationalities brought a drop in Title 42 expulsions. CBP expelled 20 percent of migrants encountered in December, the smallest proportion since the pandemic began. That percentage is likely to increase in January now that Mexico is accepting expulsions of Cubans, Haitians, and Nicaraguans as well as citizens of five other countries. Expulsions since March 2020 now exceed 2.5 million.
Russia moved into ninth place among citizenships of migrants encountered in December, ahead of Haiti and El Salvador. Nearly 8,000 Russian citizens came to the U.S.-Mexico border last month. Nearly all are asylum seekers; most turned themselves in to U.S. authorities in California and western Arizona, mainly at ports of entry. An increasing number of Russians are reporting to ports of entry in South Texas.
The House of Representatives’ new Republican leadership has abandoned plans to rush passage of H.R. 29, the “Border Safety and Security Act of 2023,” a border and migration bill promoted by the Republican majority’s most conservative members. The bill lacks sufficient Republican backing to guarantee passage in the House, where the GOP’s slim majority means it cannot afford to lose more than four of its members’ votes when seeking to pass partisan bills without Democratic support. (Such bills would probably fail, anyway, in the Democratic-majority Senate.)
As part of Rep. Kevin McCarthy’s (R-California) “gentlemen’s agreement” with ultraconservatives who had opposed his speakership, House Republican leaders pledged to bring H.R. 29 straight to the House floor for a quick vote, rather than having it pass through committees like most legislation. It has since become apparent, though, that the Border Safety and Security Act lacks the Republican votes needed to pass.
The three-page bill, pushed by Rep. Chip Roy (R-Texas) and sponsored by 58 other Republican members, would authorize the DHS Secretary to suspend entry of migrants at U.S. borders, including asylum seekers, if the Department lacked capacity to detain them or if doing so “is necessary in order to achieve operational control over such border.” The bill further empowers state governments to sue DHS for failing to suspend the entry of migrants.
The bill adopts the 2006 Secure Fence Act definition of “operational control” as “the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband.”
As this standard—zero unlawful entries—is impossible to meet, and because costly detention capacity would never grow to accommodate all migration at the border, the bill would effectively terminate the right to seek asylum at the U.S.-Mexico border. A letter to Congress signed by 250 U.S. organizations, including WOLA, called this bill part of “an alarming uptick in hateful rhetoric and violence targeting asylum seekers and immigrants in the United States.”
The Border Safety and Security Act of 2023 did not appear in the House Republican Whip’s weekly legislative schedule on January 20. It now appears that the bill must first pass through the House Homeland Security Committee, a lengthier process that will give more moderate representatives a chance to amend it.
Press reports have pointed to four Republican House members whose more moderate views on immigration have taken H.R. 29 off the fast track:
Even as their legislative push is delayed, Republican hardliners plan to promote their point of view at hearings before the committees that they chair. House Oversight and Accountability Committee Chairman Rep. James Comer (R-Kentucky) has invited four Border Patrol sector chiefs to testify during the week of February 6 (no exact date yet). At the House Judiciary Committee, Chairman Jim Jordan (R-Ohio) took to Twitter on January 25 to announce an earlier hearing on February 1 to examine “the Biden border crisis.” He offered no details about witnesses.