National

The Biden administration can resume use of a Trump-era policy that allows officials to rapidly expel migrants without chance of asylum, a federal appeals court in D.C. ruled Thursday.

Why it matters: The move will allow the Biden administration to enforce the controversial Title 42 program while it's being litigated. It was recently invoked to deport thousands of Haitian migrants in Del Rio.

Catch up quick: After the ACLU and other civil rights groups sued the Biden administration over the policy, a district judge ordered the government to halt Title 42 expulsions by the end of the month.

Federal officials have argued that the policy is necessary to prevent the spread of COVID, but immigration advocates have called it unnecessary and cited the internationally recognized right to asylum.

What they're saying: The appeals court did not provide details of its reasoning, writing only that the Biden administration has "satisfied the stringent requirements" for staying the district judge's order. 

"If the Biden administration really wants to treat asylum seekers humanely, it should end this lawless policy now and withdraw its appeal," ACLU attorney Lee Gelernt, the lead lawyer in the Title 42 challenge, said in a statement.

"We will continue fighting to end this illegal policy."

Appeals court allows Biden administration to resume Title 42 expulsions

The administration is in the midst of fighting a lawsuit from the ACLU and other advocates who say the policy is inhumane.

Photo of a crowd of migrants in a detention facility awaiting processing

Migrants are processed at Paso Del Norte International Bridge in El Paso, Texas before being expelled to Mexico under Title 42. Photo: Paul Ratje/AFP via Getty Images

Migrants

Immigration

Joe Biden

President Biden has made the COVID-19 crisis and a post-Trump return to national unity and traditional democratic ideals his top priorities. From vaccinations to stimulus to schools, Biden is seeking bipartisan compromise while showing a willingness to use executive authority and bare Democratic majorities in the U.S. House and Senate to implement his policies. Republican leaders are navigating deep party divisions over if and how to move beyond former President Trump.

Politics & Policy

Homeland Security Secretary Alejandro Mayorkas on Thursday announced new immigration enforcement priorities that seek to "take into account the totality of the facts and circumstances" in cases involving undocumented immigrants.

Driving the news: "The fact an individual is a removable noncitizen will not alone be the basis of an enforcement action against them," per the new guidance. "We will use our discretion and focus our enforcement resources in a more targeted way."

The guidance, effective Nov. 29, will prioritize the arrest and removal of immigrants who are a threat to national security, public safety and border security. 

The new guidance prohibits Immigration and Customs Enforcement officers from detaining immigrants whose status becomes revealed by "unscrupulous employers."

"We must ensure our immigration enforcement authority is not used as an instrument of these and other unscrupulous practices," per the guidance.

The guidelines also discourage ICE officers from deporting farmworkers, the elderly and others, who were able to be deported under the Trump administration, per the Washington Post. 

The big picture: The guidance comes as progress in Senate has stalled in its effort to include a legalization process in the budget, per the Post.

What he's saying: "In exercising this discretion, we are guided by the knowledge that there are individuals in our country who have been here for generations and contributed to our country’s well-being, including those who have been on the frontline in the battle against COVID, lead congregations of faith, and teach our children," Mayorkas said.

"As we strive to provide them with a path to status, we will not work in conflict by spending resources seeking to remove those who do not pose a threat and, in fact, make our nation stronger."

Go deeper: First look: Biden's economic case for green cards

DHS announces new deportation and enforcement guidance

"We will use our discretion and focus our enforcement resources in a more targeted way," Mayorkas said.

Alejandro Mayorkas speaks during a news conference at the White House in Washington, D.C., U.S., on Friday Sept. 24, 2021.

Alejandro Mayorkas speaks during a news conference at the White House in Washington, D.C. on Sept. 24, 2021. Photo: Al Drago/Bloomberg via Getty Images

Department of Homeland Security (DHS)

Texas will release nearly 250 migrants who were arrested under Gov. Greg Abbott's "catch and jail" border policy and imprisoned for over a month without being charged, The Texas Tribune reports.

Why it matters: Under Texas law, criminal defendants must be released from jail on a no-cost or affordable bond if prosecutors fail to file charges within a certain time frame. 

Defense attorneys had argued that the continued imprisonment of the migrants constitutes widespread violation of state law and constitutional rights to due process. 

The deadline for trespassing, which the vast majority of migrants were arrested for, is 15 or 30 days depending on the charge level.

Details: A state district judge granted a motion to release the migrants on Tuesday after migrants' attorneys secured agreements with the Val Verde county attorney and Kinney County prosecutors.

Val Verde will release 75 migrants, while Kinney County will release 168.

Yes, but: It's unclear what comes next. Migrants could face deportation if federal immigration authorities choose to detain them or stay in the U.S. to await legal proceedings, the Tribune notes.

Texas to release nearly 250 migrants imprisoned under "catch and jail" policy

Attorneys had argued that their continued imprisonment violates state law and constitutional rights.

Photo of Greg Abbott speaking while raising a hand

Texas

The Biden administration on Monday took additional steps to save the Deferred Action for Childhood Arrivals program despite ongoing legal challenges to the program.

Driving the news: The Department of Homeland Security unveiled a proposed rule designed "to preserve and fortify" DACA, which offers protection from deportation for undocumented immigrants brought to the U.S. as children. The rule is set to formally publish on Tuesday and would give the public two months to submit comments in favor of or against the Obama-era policy.

Details: "This proposed rule embraces the consistent judgment that has been maintained by the Department — and by three presidential administrations since the policy first was announced — that DACA recipients should not be a priority for removal," DHS officials said.

The big picture: DACA has been subject to several legal challenges since it was first implemented in 2012.

In July, a federal judge in Texas ruled that the program was unlawful because Congress had not granted the government the authority to create the program and paused new applications. 

The judge added that the program should have been enacted through federal regulation open to public comment, not through a memo from DHS, per CBS News.

The administration is appealing the ruling.

In response, President Biden called the decision "disappointing" and urged Congress to "ensure a permanent solution by granting a path to citizenship for Dreamers."

The rule was issued in spite of ongoing legal challenges, and DHS wrote in the draft rule they believe it would be "upheld in any legal challenge."

What they're saying: "The Biden-Harris Administration continues to take action to protect Dreamers and recognize their contributions to this country," DHS Secretary Alejandro Mayorkas said in a statement. 

"This notice of proposed rulemaking is an important step to achieve that goal.  However, only Congress can provide permanent protection," he added.

"I support the inclusion of immigration reform in the reconciliation bill and urge Congress to act swiftly to provide Dreamers the legal status they need and deserve."

Between the lines: Lawmakers for years have attempted to pass legislation that would allow DACA recipients to live permanently in the U.S., but these efforts have failed. 

Biden administration takes steps to "fortify" DACA

"DACA recipients should not be a priority for removal," Homeland Security officials said.

picture of a pro-immigration protest, they have signs that read "citizenship for all"

People attend a protest supporting DACA in New York, Aug. 17. Photo: Kena Betancur/AFP via Getty Images

Deferred Action for Childhood Arrivals (DACA)

Texas border crossing will partially reopen

Thousands of Haitian migrants and other asylum-seekers had sought refuge near the port of entry.

 A Border Patrol vehicle is driven along a section of the southern border wall on September 23, 2021 in Del Rio, Texas.

 A Border Patrol vehicle drives along a section of the southern border wall on Sept. 23 in Del Rio, Texas. Photo: Brandon Bell/Getty Images

The last migrants camping under the Del Rio International Bridge, which connects Texas and Mexico, departed on Friday, Homeland Security Secretary Alejandro Mayorkas announced during a White House press briefing.

Driving the news: Thousands of migrants, mostly from Haiti, had arrived to the makeshift camp after crossing the southern border seeking asylum. Roughly 1,800 migrants will now head to U.S. Customs and Border Protection processing centers.

Many migrants face expulsion because they are not covered by the protections the Biden administration extended to Haitians already in the country. 

Del Rio Mayor Bruno Lozano said the clearing of the bridge was "phenomenal news," according to AP.

The big picture: Texas officials resorted to "unprecedented" methods to stop migrants from crossing the border, including parking vehicles from the Texas National Guard and the Texas Public Safety Department along the border, per CNN. Some were whipped by Border Patrol agents who also charged their horses to those attempting to reach the bridge camp.

Between the lines: Approximately 1,500 Haitian migrants have been deported, a government official told the New York Times. The decision has prompted criticism from some United Nations agencies, which said they were "disturbed" by the images.

Senate Majority Leader Chuck Schumer also spoke against the deportations, saying that "[s]uch a decision defies common sense" and "also defies common decency." 

Del Rio bridge camp empty following Haitian migrant surge

Roughly 1,800 migrants will now head to U.S. Customs and Border Protection processing centers.

Picture of the Del Rio bridge with many tents underneath

A boy bathes himself in a jug of water inside a migrant camp at the U.S.-Mexico border on Sept. 21 in Del Rio, Texas. Photo: John Moore/Getty Images

Haiti

The Biden administration is looking for a private contractor to oversee a migrant detention facility at the U.S. naval base at Guantánamo Bay, according to a recent government listing.

Yes, but: A Department of Homeland Security spokesperson said in an email on Wednesday night that the DHS "is not and will not send Haitian nationals being encountered at the southwest border to the Migrant Operations Center (MOC) in Guantanamo Bay."   

"The MOC has been used for decades to process migrants interdicted at sea for third-country resettlement," the spokesperson said.

Context: The move comes as the administration struggles to manage thousands of Haitian migrants crowded in an encampment in the border town of Del Rio, Texas.

Details: The immigrant holding facility has the capacity to hold 120 people and will have an "estimated daily population" of 20 people, says the listing, which the  DHS quietly posted on Sept. 17.

"The service provider shall be responsible to maintain on site the necessary equipment to erect temporary housing facilities for populations that exceed 120 and up to 400 migrants in a surge event."

At least 10% of personnel must be fluent in Spanish and Haitian Creole. 

It's unclear whether the administration plans to transfer migrants from the southern border to Guantánamo Bay, where migrants detained at sea have been housed, per NBC News.

What they're saying: The DHA spokesperson said that the request for information recently posted was "a typical, routine first step in a contract renewal, and unrelated to the Southwest Border."

"The contract was initially awarded in 2002 with the current term ending on May 31, 2022," the spokesperson said. 

"Migrants awaiting resettlement who are not in ICE custody at the MOC are neither detained nor imprisoned and are free at any time to return to their country of origin."

The big picture: Guantánamo Bay is known as the site of a controversial prison for suspected terrorism detainees, though many were later said to be innocent.

During the George H.W. Bush administration from 1991 to 1993, then-Attorney General William Barr indefinitely detained as many as 12,000 Haitian asylum seekers at an immigration facility in Guantánamo Bay.

"It's highly concerning that the administration may be considering using Guantánamo to detain Haitian asylum-seekers or others," said Wendy Young, president of the immigrant advocacy group Kids in Need of Defense, to NBC News. 

"It's a sense of déjà vu all over again," Young added.

Worth noting: Federal officials told AP on Tuesday that many Haitian migrants waiting in Del Rio are now being released into the U.S.

Demonstrators protested the deportation and treatment of Haitian migrants outside a U.S. Immigration field office in Miami on Wednesday.

ICE did not immediately respond to a request for comment.

Editor's note: This article has been updated with comment from the DHS. 

DHS seeks operator for Guantánamo Bay migrant detention facility amid Del Rio surge

At least 10% of personnel must be fluent in Spanish and Haitian Creole, the government listing says.

Photo of Alejandro Mayorkas sitting in front of a mic

Secretary of Homeland Security Alejandro Mayorkas. Photo: Graeme Jennings/Pool via Getty Images

Tampa Bay

A federal judge on Tuesday struck down parts of a Florida law aimed at banning local governments from establishing sanctuary city policies, arguing in part that the law is racially motivated and that it has the support of hate groups.

Why it matters: In a 110-page ruling issued Tuesday, U.S. District Judge Beth Bloom said the law — signed and championed by Gov. Ron DeSantis (R) — violates the Constitution's Equal Protection Clause because it was adopted with discriminatory motives.

The big picture: Republicans in states across the country have prioritized banning sanctuary cities — municipalities that refuse to hold undocumented immigrants in criminal custody, block immigration agents from working in county jails or deny federal authorities access to immigrants' records.

At least 11 states have adopted policies banning such cities, per Reuters.

Details: The state had pushed the law — SB 168 —  as a public safety measure. But Bloom rejected that argument, saying it was not supported by crime statistics or other evidence.

The judge also objected to advocacy groups that she said had an influence in crafting the law, like Floridians for Immigration Enforcement, which she said "has been labeled as an anti-immigrant racialist group."

“Allowing anti-immigrant hate groups that overtly promote xenophobic, nationalist, racist ideologies to be intimately involved in a bill’s legislative process is a significant departure from procedural norms,” Bloom wrote. 

“This involvement strongly suggests that the Legislature enacted SB 168 to promote and ratify the racist views of these advocacy groups.”

Bloom said the law would likely disproportionately impact Latino and Black people in Florida by expanding the scope of policing in a state that has historically applied laws unequally.

"These discriminatory motives are made evident from the historical and ongoing pattern of racial discrimination by law enforcement and the growing reliance on an immigrant threat narrative to justify the enactment of anti-immigrant legislation across the nation," the judge wrote.

Yes, but: The judge did approve some provisions of the law, including a requirement that local law enforcement complies with requests from Immigration and Customs Enforcement to detain people beyond their release date so they can be picked up by federal agents.

What's next: DeSantis' office said Wednesday it will appeal the ruling, per ABC News.

Federal judge: Florida ban on sanctuary cities racially motivated

The judge said the law — signed and championed by GOP Gov. Ron DeSantis — violates the Constitution.

Florida Gov. Ron DeSantis. Photo: Joe Raedle/Getty Images

Florida

Politics

Members of the Biden administration are condemning footage that shows U.S. Border Patrol agents reportedly whipping at and charging horses at migrants in Del Rio, Texas, CNN reports.

Why it matters: Over the weekend, the Biden administration began cracking down on the thousands of Haitian migrants who have sought refuge in Del Rio in the hope of seeking asylum. The Department of Homeland Security (DHS) launched an investigation into the Border Patrol incident after it drew backlash online.

What they're saying: "What I saw depicted about those individuals on horseback, treating human beings the way they were, is horrible. And I fully support what is happening right now, which is a thorough investigation into exactly what is going on there," Vice President Kamala Harris said on Tuesday.

"But human beings should never be treated that way and I am deeply troubled by it," she added.

"I was horrified by what I saw," DHS Secretary Alejandro Mayorkas said in an interview with CNN's Brianna Keilar earlier Tuesday. "I'm going to let the investigation run its course. But the pictures that I observed troubled me profoundly. That defies all of the values that we seek to instill in our people."

"I, by no means, diminish the humane issue that it presents, but I want to be clear that we do have a plan to address it, respecting the needs of the individuals and we are executing on that plan."

Worth noting: AFP photographer Paul Ratje took the photos and later told KTSM he didn’t witness agents using reins as whips. Another reporter on the scene, Martha Pskowski of the El Paso Times, said that reins were swung like a whip by at least one agent.

The big picture: U.S. authorities began deporting hundreds of migrants back to Haiti on Sunday. Roughly 4,000 have been moved "from under that bridge already," according to Mayorkas.

The administration plans to move more migrants to other processing centers "so that we can ensure their security and safety and the security and safety of the community."

"We expect to see dramatic change in the next 48 to 96 hours," Mayorkas added.

Editor’s note: This article has been updated to include comments from multiple media outlets who were at the scene on what they witnessed happen.

Harris, Mayorkas voice horror at footage of Border Patrol reportedly whipping at migrants

The footage of Border Patrol agents charging at migrants on horseback in Del Rio has drawn backlash online.

Photo of a U.S. Border Patrol agent sitting on horseback holding a long rein in a whipping motion as they face off against a migrant who's running back into the water

Several United Nations agencies on Tuesday expressed concern over the U.S. deportation of Haitian migrants and asylum seekers, Reuters reports.

What they're saying: "While some people arriving at the border may not be refugees, anyone who ... claims to have a well-founded fear of being persecuted in their country of origin — they should have access to asylum and to have their claim assessed before being subjected to expulsion or deportation," said UN Refugee Agency spokesperson Shabia Mantoo, per Reuters.

"We are disturbed by the images that we have seen and by the fact that we have seen all these migrants and refugees and asylum-seekers in transport to Port-au-Prince," said UN human rights spokesperson Marta Hurtado.

"We are seriously concerned by the fact that it appears there have not been any individual assessments of the cases," she added.

The big picture: More than 10,000 migrants and asylum seekers have been temporarily staying in a crowded camp under the bridge that connects Texas and Mexico after crossing the Southern border. 

Many are fleeing extreme poverty, disaster and political unrest. 

In recent days, the U.S. has started deportation flights to Haiti under Title 42. The Trump-era policy allows the government to fast-track deportations during the pandemic. Immigrant rights groups have called the policy "racist" and "illegal."

Images of Border Patrol agents whipping migrants in Del Rio prompted outrage on Monday, with many pointing to the agency's history of violence against people of color. 

A Department of Homeland Security told Axios that the agency "does not tolerate the abuse of migrants in our custody and we take these allegations very seriously."

Customs and Border Protection’s Office of Professional Responsibility is currently investigating the incident. 

UN "disturbed" by U.S. deportation of Haitian migrants and asylum seekers

"We are seriously concerned by the fact that it appears there have not been any individual assessments of the cases."

Picture of two Haitian boys in water crossing the U.S.-Mexico border

Two Haitian boys cross the water at the US-Mexico border on the Rio Grande. Photo: PAUL RATJE/AFP via Getty Images

China is becoming the most formidable rival America has faced, and the risk of confrontation with Russia, North Korea or Iran still looms. Authoritarians are rising, the chaotic Afghanistan exit revealed the limits of U.S. power, and the pandemic, climate change and other critical challenges continue to pose grave threats.

World

U.S. intelligence officials are privately bracing for a massive influx of more than 170,000 migrants at the Mexico border if COVID-era policies that allow instant expulsions during the public health emergency are ended, sources with direct knowledge of the discussions tell Axios.

The response under way includes a newly created — and previously unreported — Southwest Border Coordination Center (SBCC), essentially a war room to coordinate an interagency response.

Why it matters: Border officials have used Title 42 more than 1 million times to rapidly expel migrants at the southern border without hearing asylum claims. But the Trump-era order wasn't set up to be permanent, and senior Biden officials are preparing for its end as the virus is brought under control.

Department of Homeland Security intelligence estimates that perhaps 25,000 migrants already are waiting in Mexican shelters just south of the border for Title 42 to end. 

On Wednesday, DHS Deputy Secretary John Tien asked employees "to consider stepping forward to support the DHS Volunteer Force," citing large numbers of migrants at the southwest border, according to an email seen by Axios. The email seeks general support for U.S. Customs and Border Protection and help with data entry.

Sources spoke to Axios on condition of anonymity to discuss sensitive internal conversations.

What they’re saying: White House spokesperson Vedant Patel did not confirm or dispute specifics of Axios’ reporting but said in a statement, “Of course the Administration is doing our due diligence to prepare for potential changes at the border.“

"That is good government in action,” the statement said. “As always is the case this Administration is working every day to provide relief to immigrants, restore order, fairness, and humanity to our immigration system and bring it into the 21st century.” 

Behind the scenes: Internal discussions have raised alarms that human trafficking networks throughout Mexico and Central America will exploit the situation to "generate a mass migration event." 

Top Biden officials representing multiple agencies have been meeting to discuss a whole-of-government plan to deal with the potentially record-breaking spring influx of migrants.  DHS has branded it the Southwest Border Mass Irregular Migration Contingency Plan.

The plan is sweeping, reflecting how serious the Biden administration believes the situation could soon become, worsening a border surge that has troubled it from the beginning. 

Details: The SBCC will physically operate out of the DHS headquarters at St. Elizabeth's in the case of a border emergency and will be led by Border Patrol's Matthew Hudak, according to two sources familiar with the details.

Although SBCC members have not been finalized yet, DHS is asking for senior officials to support the center from relevant agencies such as the departments of State, Justice, Defense and Health and Human Services.

Meanwhile, DHS's modeling would trigger some extreme measures, many of which have been taken during past border surges such as in 2021 and 2019.

The department could surge hundreds or thousands of additional personnel from Customs and Border Protection, Immigration and Customs Enforcement, the Transportation Security Administration, Citizenship and Immigration Services and medical personnel from the Department of Health and Human Services.

DHS could request aircraft from the U.S. Marshals Service to help transfer migrants to other areas of the border, and call on additional air and ground transportation from the Department of Defense.

Officials could also request dozens of buses from the Bureau of Prisons to transport migrants between DHS facilities.

And they anticipate having to expand and even build new soft-sided facilities that can shelter up to 2,000 migrants apiece.

Between the lines: Border resources are already strained with unusually high numbers of people attempting to cross every month for a year straight. 

Officials expect those numbers to climb even higher in coming months due both to seasonal trends and the expected end of Title 42.

The backstory: The CDC's Title 42 order, first issued under then-President Donald Trump in March of 2020, uses the pandemic as a reason for expelling migrants attempting to enter the U.S. — without the chance to seek asylum.

Despite outcry from progressive Democrats and immigration advocates, the Biden administration has continued to rely on the policy to turn back migrant families and single adults.

At the same time, the Biden administration has attempted to end Trump's "Remain in Mexico" policy, which forced migrants into dangerous situations by making them wait for asylum hearings in Mexico.

The government's seeming self-contradiction in simultaneously defending Title 42 — which has also forced migrants back to Mexico  — was raised in court by D.C. Circuit Judge Justin Walker in a unanimous decision blocking the U.S. from expelling migrant families to countries where they may face persecution or torture.

What to watch: Reuters recently reported that the administration is leaning toward ending Title 42 itself.

The CDC was recently forced by courts to again end the use of Title 42 for unaccompanied minors, and the order notes "CDC anticipates additional lifting of restrictions" as DHS becomes increasingly able to prevent the spread of COVID-19 in its facilities.

CDC reassesses Title 42 every 60 days. The next deadline for renewal is in early April. "We continue to defer to the CDC on the use of Title 42 and how long it might remain in effect," a White House official told Axios.

"As it stands right now — there are no changes: Title 42 is still in effect and anyone attempting to enter the country unlawfully will be subject to border restrictions — including potentially expulsion," the official added.

In addition to preparations on the U.S. side of the border, officials are planning how to coordinate with Mexico and other Latin American nations. 

Buzzfeed News recently reported on DHS planning to discuss  with Mexico Title 42 ending as soon as April, and what that could mean for migration flows. DHS Secretary Mayorkas visited Mexico this week. 

The issue of immigration has plagued President Biden since he took office, opening him up to criticism from both the right and the left. 

Democrats have been most critical over the continued use of Title 42, which they see as a cruel Trump-era policy. Immigration advocates have been outraged over the low numbers for refugee admissions and the reimplementation of "Remain in Mexico" as ordered by a federal court.

Meanwhile Republicans have pointed to record numbers at the border and reports of migrants being released into the U.S. by overwhelmed officials, saying Biden is creating "open borders." 

By the numbers: After declining in January, the number of encounters with migrants at the border ticked up in February to 165,000, according to new data released on Tuesday. 

While the number is well below last year's peak of nearly 214,000 encounters in July, it is higher than last February's, which initially sparked concerns of a border crisis.

Border patrol arrests reached an all-time high in fiscal year 2021 at nearly 1.7 million. 

Officials are projecting similar numbers for this fiscal year with the end of Title  42, according to sources familiar with the estimates. And some are concerned that reports of migrants being released into the U.S. in lieu of Title 42 could further encourage migration. 

Go deeper: Migrant advocates fed up as Biden continues controversial Trump practices

Scoop: Biden officials fear "mass migration event" if COVID policies end

Title 42 has been used to rapidly expel migrants at the southern border.

Asylum seeking migrants from Colombia, Cuba, and Venezuela arrive on US soil, after crossing the Colorado River, from Mexico 

Asylum-seeking migrants from Colombia, Cuba and Venezuela. Photo: Katie McTiernan/Anadolu Agency via Getty Images

Illegal immigration

The U.S. faces a range of health care flashpoints — unaffordable drugs, opioids, vaping — as we debate whether to adopt universal care. For now, the Affordable Care Act is the law of the land, but Republicans want to issue it a final death blow.

Health

The White House is considering requiring migrants aged 5 and older to receive a coronavirus vaccination as a condition for crossing the U.S.-Mexico border to await court hearings, Axios has learned.

Why it matters: The Biden administration has been offering the COVID-19 vaccine to people in immigration detention centers or shelters but hasn't yet offered it to other migrants who've crossed the border — much less required it.

Scoop: White House eyes vaccine mandate for migrants

The requirement would come as foreigners and U.S. citizens must be vaccinated to travel into the U.S.

Sections

Axios Local

Axios gets you smarter, faster with news & information that matters.

About

Subscribe

All Immigration stories