January 23, 2024

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In a brief 5-4 ruling, the Supreme Court sided with the Biden administration and granted the federal Border Patrol permission to cut through the spools of concertina wire that Texas’s state government has placed along dozens of miles of border along the Rio Grande. Chief Justice John Roberts and Justice Amy Coney Barrett sided with the high court’s three Democratic appointees.

In late October, Texas Gov. Greg Abbott (R) had banned federal agents from cutting the razor-sharp wire, as they had been doing in order to access asylum seekers and people in distress along the riverbank. While a federal district court sided with the administration, the 5th Circuit had allowed Texas’s ban to remain in place while appeals proceeded, leading the Department of Justice to seek an emergency action from the Supreme Court. Texas’s appeal is ongoing, with arguments scheduled for February 7.

The January 22 Supreme Court ruling does not affect Texas’s January 10 banning of Border Patrol agents from a 50-acre riverfront park in Eagle Pass. Nor does it affect Texas’s placement of a string of buoys in the river in Eagle Pass, which remains while the 5th Circuit considers an appeal of its own earlier ruling ordering their removal.

“Border Patrol is not planning to use the order as a green light to remove the razor wire barriers if they do not present an immediate hazard,” a “senior agency official” told the Washington Post.

As of last August, Texas state police had treated 133 migrants for injuries caused by the concertina wire.

Since November, a small group of senators has been negotiating a compromise that might allow the Biden administration’s request for $110.5 billion in Ukraine and Israel aid, new border spending, and other priorities to move forward, in exchange for Republican demands for restrictions on asylum and perhaps on other migration pathways. Senators now say they are near agreement on what those restrictions will be, and that legislative language could emerge this week.

“Our work is largely done. The conversation has really moved over to Appropriations. So, there’s no reason why we couldn’t begin consideration this week,” said Sen. Chris Murphy (D-Connecticut), the Democrats’ chief negotiator and the chairman of the Homeland Security Appropriations Subcommittee. “We are at the point of drafting and finalizing text.”

“It’s not going to be ready today, to be able to go out. Everybody’s got to have several days to be able to go through it. It’s gonna depend on final timing – it would be quite a push to be able to get it out this week,” said lead Senate negotiator James Lankford (R-Oklahoma).

The deal may include a Title 42-style authority to expel asylum seekers, regardless of protection needs, when daily migrant encounters exceed a certain number at the U.S.-Mexico border. It may also raise the standard of “credible fear” that asylum seekers must meet when placed in screening interviews with asylum officers, a process known as “expedited removal.” The agreement might also increase detention of asylum seekers pending adjudication of their cases.

It is not clear whether senators have resolved Republican demands for limits on the 70-year-old presidential authority to offer temporary “humanitarian parole” to some migrants. The Biden administration has paroled over 1 million migrants, including 422,000 people who came to ports of entry after securing appointments with the CBP One smartphone app; 340,000 citizens of Cuba, Haiti, Nicaragua, and Venezuela permitted to apply online; and 176,000 beneficiaries of the “Uniting for Ukraine” policy.

“The emerging Senate deal seeks to reduce parole numbers by tightening immigration enforcement and speeding up processing,” the New York Times reported. “There are some changes that will be made in parole that I think will get at the abuse and misuse of it,” said Senate Minority Whip John Thune (R-South Dakota). CBS News reported that a compromise deal might exclude paroled people from applying for asylum, but official sources consulted by the Washington Post’s Greg Sargent denied that.

Another barrier to agreement is appropriations: if Republicans win new limits on asylum and other migration, implementing them will cost money, and legislative language will have to account for that.

If senators do reach a deal this week, “we’d expect the Senate to stay in session for as long as it takes to complete action on the measure,” wrote John Bresnahan at Punchbowl News. “Meaning through the weekend or whatever it takes for a final vote.”

Even if the Senate passes a Ukraine-Israel-border bill, it would then go to the House of Representatives, where the Republican majority, egged on by former president Donald Trump, may demand even stricter limits on migration.

At The Hill, Rafael Bernal highlighted the absence of Congressional Hispanic Caucus members from the Senate negotiations on restricting protection-seeking migration in exchange for Ukraine and other aid.

A statement from Ken Salazar, the U.S. ambassador to Mexico, revealed that the U.S. government repatriated migrants on 79 flights between January 1 and 21. The planes returned people to Guatemala (36 flights), Honduras (23), El Salvador (6), Colombia (3), Venezuela (3), Ecuador (2), Peru (2), Romania / India (1), Dominican Republic (1), Nicaragua (1), and Haiti (1).

Salazar’s statement credited Mexico with dismantling “at least 10 of the most prolific criminal organizations” engaged in migrant smuggling.

“On December 18 we had a pressure on the border of 12,498 migrants (per day) and we managed to reduce it to 6,751,” Mexico’s foreign minister, Alicia Bárcena, said at a presidential press conference on January 22.

Nine Democratic governors sent a letter to the White House and Congress calling for federal aid to help manage arrivals of migrants seeking refuge in their states.

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