May 12, 2023 - Politics & Policy

Emergency court maneuvers threaten Biden border efforts

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Photo: Drew Angerer/Getty Images

President Biden’s border moves have sparked legal attacks from both Republicans and immigration advocates which threaten to hamstring officials now grappling with a record 10,000 crossings a day.

Why it matters: The recent court maneuvers are a clear example of the legal, political and logistical complications faced by any administration stuck with decades-old immigration laws and new, unprecedented migration flows.

Thursday night marked the end of Title 42, after more than three years of the public health order enabling the rapid expulsion of hundreds of thousands of migrants without a chance at asylum.

  • Just before the policy ended, a Florida court temporarily blocked border officials from releasing migrants from custody without court dates. Government attorneys have warned such a ruling would lead to dangerous overcrowding at Border Patrol stations not designed for long-term stays.
  • Moments after the end of the public health emergency, the ACLU and immigration advocates filed a suit over the new, restrictive asylum rules that have been loudly touted by top officials in recent days.

Border Patrol facilities have already been over capacity in recent days, according to internal data and Border Patrol Chief Raul Ortiz.

  • “I will tell you that five of the nine southwest border sectors are over 125% capacity,” Ortiz told reporters in El Paso on Wednesday.

What they’re saying: "The lawsuits we are facing frankly from both sides of the aisle really clearly demonstrate just how fundamentally broken our immigration system is,” Blas Nunez-Neto, a top border official at DHS, told reporters on a Friday call.

  • "We have for the better part of two decades now experienced these surges in migration under presidents of both parties."
  • Nunez-Neto said officials were concerned about the impact of the Florida ruling in particular.

Catch up quick: Anticipating that historically high border crossings would spike further, the Biden administration has rolled out several controversial policies that are facing legal challenges:

  • New parole opportunities for Venezuelans, Nicaraguans, Cubans and Haitians. If those nationalities cross illegally instead, they can be removed to Mexico. This program is being challenged by 20 GOP-led states.
  • New asylum rules that automatically reject from asylum most migrants who cross illegally and have not first applied for protections in a country they traveled through.
  • As a last resort, border officials had also been told to be ready to release migrants from custody on parole, without an immigration court date, when border facilities became dangerously overcrowded. The administration is expected to appeal an emergency ruling blocking the use of parole in this way.
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