As Biden admin touts sharp drop in numbers after Title 42, legal challenges loom

As the Biden administration touts a more than 70% short-term drop in southern border encounters following the expiration of the Title 42 public health order, it faces escalating legal battles that could – and already have – torpedoed some key policies he put in place.

“We have seen … a significant decrease in border encounters, a reduction of more than 70% since Title 42 was lifted on May 11,” DHS official Blas Nunez-Neto told reporters at the border this week. .

Nunez-Neto also explained how the administration expanded what it calls legal avenues of entry into the United States, including allowing more than 1,000 migrants a day into the United States who applied on the CBP One app.


We have also seen how the consequences we bring as part of our overall effort to manage border flows work,” he said.

At the start of a third year of a historic crisis on the southern border, which critics have linked to the administration’s “capture and release” policies and reduced law enforcement in the interior, the administration has implemented a number of additional border policies to prevent a further increase. once the Title 42 public health order ended on May 11.

Immigration crisis in the United States

A Customs and Border Protection officer (L) watches immigrants queuing to be transported from a makeshift camp between border walls between the United States and Mexico on May 13, 2023 in San Diego, California. (Mario Tama/Getty Images)

At the center of this strategy is an asylum, “bypass of legal channels” rule, implemented on May 11, which presumes that migrants are not eligible for asylum if they entered the United States illegally. and have not sought asylum in a country through which they have previously travelled.

Although this does not necessarily mean that they will not be released in the United States, in theory it would bar most migrants from a valid asylum claim unless they take advantage of the pathways established by the United States. ‘administration. The most important of these avenues is using the CBP One app to schedule an appointment at a port of entry with a CBP official.

Meanwhile, the “presumption of ineligibility” (the administration has denied claims by left-wing activists that this amounts to a “ban”) can be rebutted if a migrant can prove the app didn’t work or he is in acute danger. It does not apply to unaccompanied migrant children.


Left-wing activists led by the American Civil Liberties Union immediately sued, arguing it was an illegal blockage of the right of foreign nationals to seek asylum in the United States.

But in recent days, the rule has also been challenged by GOP-led states. The first came from Texas, which said neither the CBP One app nor officials ask if migrants they let in are seeking asylum. The Texas complaint says the administration encourages migrants to cross the border “without establishing that they have an exception to deportation or that they have a legal basis to remain in the country.”

This week, a new 18-state lawsuit challenged the rule more broadly, calling it a “smokescreen” that essentially recategorizes otherwise illegal crossings as legal.

“Defendants claim that the circumvention rule will deter illegal border crossings, reduce the number of new illegal aliens entering the United States, and reduce reliance on human trafficking networks. The truth, however, is that the circumvention rule is a combination of a half measure and a smokescreen,” states state, led by Indiana. “It’s riddled with exceptions and is part of the Biden administration’s broader effort to obscure the true situation on the southwest border.”

If any of the three lawsuits, filed in different county courts, are successful, it could dramatically change how the Biden administration wields its border powers.

Separately, the administration has already frozen a migrant release policy it put in place the day before Title 42 ended. This policy, called “conditional parole,” saw migrants released in inside with no court date due to overcrowding. Nearly 9,000 migrants were released while the policy was in place.

A federal judge terminated the policy just hours before the end of Title 42. He agreed with Florida Attorney General Ashley Moody’s arguments that the policy was “materially identical” to the one he had blocked in March.


US Homeland Security Secretary Alejandro Mayorkas speaks during the daily press briefing in the Brady Press Room of the White House in Washington, DC on May 11, 2023.

US Secretary of Homeland Security Alejandro Mayorkas speaks during the daily press briefing in the Brady Press Briefing Room of the White House in Washington, DC on May 11, 2023. Migrants entering the United States without documents as pandemic-era checks lift May 11 face long-term bans and possible prosecution, Homeland Security Secretary Alejandro Mayorka has warned. “Our borders are not open,” Mayorkas said, hours before the United States implemented a tough new immigration policy. (Photo by Brendan SMIALOWSKI/AFP) (Photo by BRENDAN SMIALOWSKI/AFP via Getty Images) (Brendan SMIALOWSKI/AFP) (Photo by BRENDAN SMIALOWSKI/AFP via Getty Images)

The administration called the blockage “sabotage” and warned it could lead to severe overcrowding at CBP stations. This has yet to happen, due to the subsequent decline in encounters with migrants at the border.

However, this week Florida broadened its challenge, arguing that a “streamlined” policy of releasing migrants with court dates (notice to appear) and on their own recognizance (OR) should also be blocked.

“Biden’s drive to violate public safety immigration laws and release massive amounts of illegal immigrants into the country knows no bounds,” Moody said Friday in a statement to Fox News Digital.

“After repeatedly beating Biden in federal court, his administration has admitted to a new policy aimed at circumventing the law and freeing immigrants to the country. We are fighting against this outrageous and illegal Biden policy designed to further weaken our border security – making Americans less safe.

If the NTA/OR policy is blocked, it could result in a situation where no illegally entered migrants are allowed into the United States or an alternative policy attempted by the administration.


Meanwhile, the situation at the border remains precarious. Although the numbers are low, officials have cautioned against concluding that it will stay that way – especially since the summer months are typically some of the busiest on the border.

In his remarks to the press, Nunez-Neto said DHS remains vigilant.

“The conditions driving migration in the hemisphere are real and ongoing. We are watching very closely what is happening in Mexico and other countries,” he said. “We know that smugglers will spread false information to endanger the lives of migrants for profit. We therefore continue to work closely with our overseas partners to ensure that they continue their enforcement efforts. And we obviously pursue ours.

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