Developments
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.
- “Order in Pending Case” (U.S. Supreme Court, January 22, 2024).
- Ann E. Marimow, Nick Miroff, “Supreme Court Clears Way for Border Agents to Remove Texas Wire Barrier” (The Washington Post, January 22, 2024).
- Devan Cole, “Supreme Court Allows Biden Administration to Remove Razor Wire on Us-Mexico Border in 5-4 Vote” (CNN, January 22, 2024).
- Adam Liptak, “Supreme Court Backs Biden in Dispute With Texas Over Border Barrier” (The New York Times, January 22, 2024).
- Camilo Montoya-Galvez, “Supreme Court Says Biden Administration Can Remove Razor Wire That Texas Installed Along Border” (CBS News, January 22, 2024).
- Ian Millhiser, “The Supreme Court Says No, Texas Can’t Use Razor Wire to Restrain Federal Agents” (Vox, January 22, 2024).
- Mark Sherman, Paul J. Weber, “Supreme Court Allows Federal Agents to Cut Razor Wire Texas Installed on Us-Mexico Border” (Associated Press, Associated Press, January 22, 2024).
- Khaleda Rahman, “Greg Abbott Vows “This Is Not Over” After Supreme Court Border Loss” (Newsweek, January 23, 2024).
- Bradford Betz, “Critics Bash Scotus Decision Allowing Feds to Cut Razor Texas Installed to Stem Illegal Border Crossings” (Fox News, January 22, 2024).
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.
- John Bresnahan, “A Big Week for Border Talks” (Punchbowl News, January 22, 2024).
- Ursula Perano, “Murphy Says Border Talks ‘Largely Done,’ Signaling Potential Final Phase” (Politico, January 22, 2024).
- “Manu Raju @Mkraju on Twitter” (Twitter, January 22, 2024).
- Camilo Montoya-Galvez, “Biden Administration Has Admitted More Than 1 Million Migrants Into U.S. Under Parole Policy Congress Is Considering Restricting” (CBS News, January 22, 2024).
- “Camilo Montoya-Galvez @Camiloreports on Twitter” (Twitter, January 22, 2024).
- “Greg Sargent @Gregtsargent on Twitter” (Twitter, January 22, 2024).
- Karoun Demirjian, “With Border Deal Near, Parole and Money Take Center Stage in Senate Talks” (The New York Times, January 22, 2024).
- Michelle Hackman, “What Is Humanitarian Parole? How an Obscure Biden Immigration Policy Became So Controversial” (The Wall Street Journal, January 22, 2024).
- Rafael Bernal, “Hispanic Caucus Snub Raises Questions About Border-Ukraine Deal” (The Hill, January 22, 2024).
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.
- Embajador Ken Salazar, “Comprometidos a Abordar la Migracion Irregular Como un Reto Humanitario y de Seguridad” (U.S. Embassy Mexico, January 22, 2024).
“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.
- “Mexico Afirma Que la Migracion se Ha Reducido a la Mitad Desde el Pasado Mes de Diciembre” (Tal Cual (Venezuela), January 22, 2024).
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.
- Grace Ashford, “9 Democratic Governors Push Biden and Congress to Address Migrant Crisis” (The New York Times, January 22, 2024).