Biden faces new pressure on immigration

By Michael D. Shear and Eileen Sullivan

President Joe Biden came under renewed pressure on immigration late last week as authorities said the largest number of migrants in years arrived at the border with Mexico last month and a federal judge in Texas raised legal questions about an Obama-era program that protects young immigrants from deportation.

Border officials encountered migrants nearly 6,000 times a day last month for a total of 188,829, the largest monthly number in recent history, according to data released Friday by Customs and Border Protection. The surge is happening at the height of the hottest summer months, when the flow of people seeking entry into the United States usually abates.

In Texas, Judge Andrew S. Hanen of U.S. District Court in Houston ruled that the program known as Deferred Action for Childhood Arrivals, or DACA, was unlawful, raising new questions about the fate of nearly 600,000 immigrants, often referred to as Dreamers. But in a partial victory for Biden and immigration advocates, Hanen stopped short of ordering the program terminated, saying the government could not approve new applications.

The ruling adds urgency to Democratic efforts to permanently legalize DACA recipients as part of Biden’s $3.5 trillion economic recovery bill being debated in Congress. Activists have already been pressing Biden to make sure that the Dreamers and other immigrants are given a path to citizenship in the bill, though the effort could be blocked by complicated procedural rules in the Senate.

Taken together, Friday’s developments underscored the difficult and often politically fraught choices that Biden is confronting on immigration, an issue that could shape his legacy and help define the moral center of his presidency.

In recent weeks, progressive Democrats have ratcheted up their pressure on Biden to end the use of a Trump-era public health rule that suspends asylum rights in the name of protecting Americans from the coronavirus, calling it an inhumane and unnecessary pandemic-era restriction.

But Republicans are ready to pounce the moment he does that, eager to portray Biden as an open-borders president who pays too little attention to the crime, health and economic consequences of his immigration policies.

So far, the public health rule — imposed last year by the Centers for Disease Control and Prevention using what is known as Title 42 authority — has given Biden’s administration additional time to prepare to deal with larger numbers of migrants in the future.

But activists say the surge at the border means that the administration is unfairly denying asylum rights to tens of thousands of migrants each month. Of the more than 1.3 million times border authorities encountered migrants since March 2020, officials have used the public health rule more than 973,000 times to deny them the chance to claim asylum, making exceptions primarily for children and some families.

Ending use of the rule might satisfy critics in Biden’s own party, but it could also lead to new scenes of crowded, unsafe Border Patrol stations and fuel conservative talking points before the midterm elections in 2022.

Either way, there are challenges.

If the president increases detention facilities to hold illegal border crossers for long periods of time, he risks accusations that he is embracing his predecessor’s anti-immigrant policies. If he allows tens of thousands of migrants to wait in the United States for their court hearings, he will be accused of allowing a “catch and release” policy with a pandemic still raging.

“They’re in a hard place,” said Rep. Henry Cuellar, a Democrat from a border district in Texas. “Anytime you campaign, it’s a lot easier to say certain things. But once you’re in office and you see what’s happening,” reality sets in.

The grace period for Biden is quickly running out as more of the country is vaccinated and reopens. And pressure from the immigration activists who campaigned with him is mounting.

Earlier this year, when the president partially lifted the public health rule for migrant children who arrived alone at the southwest border, the government found itself woefully underprepared. Without enough shelters to hold the children, they stayed crammed in Border Patrol cells for days, sleeping on gym mats with foil sheets. The situation drew criticism from inside the country and around the world.

Sen. Ted Cruz, R-Texas, introduced a bill last week that would block the White House from lifting the public health rule. And other Republicans have seized on the decision about the Title 42 restrictions to attack the president.

“The Biden administration shouldn’t sacrifice the health of U.S. citizens to shield illegal immigrants,” said Sen. Tom Cotton, R-Ark. “Our bill simply upholds successful immigration policies that protect Americans from the coronavirus and its variants.”

For now, Biden is deferring to the CDC to determine when the policy can be safely ended. Alejandro Mayorkas, secretary of homeland security, said at a recent congressional hearing that the restrictions would stay in place until public health officials said otherwise.

Lawmakers, immigration advocates, nonprofits, and border and immigration officers have been left in the dark for months about a possible timeline for lifting the public health rule.

In June, border officials saw a spike in the number of migrant families arriving at the border, but only 14% were turned away under the public health order, because of exceptions and Mexico’s unwillingness to take migrants from certain countries back.

The number of migrant children and teenagers arriving at the border increased slightly from May, but the influx has slowed since early spring, when a steep surge created Biden’s first immigration crisis as president. On average, about 500 migrant children and teenagers arrived alone at the border in June, compared with about 600 a day in March.

The uptick in family arrivals in June still falls well short of the record set in May 2019, when 84,000 families came.

When it gets the go-ahead from the CDC, the administration is planning on lifting the health rule in stages, as early as the end of July, first allowing in migrant families.

But the real test for Biden will come when the rule is lifted not only for families, but for single adults who have been arriving in large numbers over the past few months. The number of times that single adults tried to enter the country last month was down slightly; they were turned away under the public health rule 82% of the time.

Recently, officials from Immigration and Customs Enforcement are starting to be detailed to the border to help process migrants into the country, according to an official familiar with the plan. Bringing in more migrants creates a need for more space for them while they go through the initial steps, a process that can take two or more hours per person. More migrants also means there will need to be more translators, more coronavirus tests and more space for medical isolation, particularly with the spread of a stronger variant of the virus.

ICE plans to enroll the migrant families seeking asylum in tracking programs without having to detain them, which means buying more equipment, such as ankle monitors and smartphones loaded with applications so that they can check in with the government while they wait for their case to move through the clogged immigration system.

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