Dear Karen,

As we bid a long-delayed farewell to Title 42 (the migrant expulsion scheme masquerading as a public health policy), we are confronted with its legacy: the normalization of previously unthinkable, draconian restrictions on the right to seek safetyand of red states hijacking the courts to block even the most modest efforts to make the asylum process more humane. See below (and our microsite) for the latest on those two unfortunate current realities. 

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May 15, 2023

Biden replaces T42 with shameful Trump-inspired asylum ban (that’s already been challenged) 

As it has been promising for months, the Biden Administration issued a regulation last week that severely restricts the legally-enshrined right to apply for asylum. The convoluted rule makes non-Mexican asylum seekers at the southern land border (and now, the adjacent coastal borders) presumptively ineligible for asylum in the United States, subject to narrow, tightly restricted exceptions. The regulation basically creates out of thin air* a southern-border specific asylum system that is far less generous than the one created by Congress (*in fairness, Trump made it out of thin air first). As was surely expected, the Biden asylum ban has already been challenged

New “Parole with Conditions” policy issued Wednesday, blocked by Florida judge on Thursday, separately challenged by Texas on Friday 


Also in anticipation of the end of Title 42, DHS issued a policy (“Parole with Conditions”) on May 10 providing guidance on limited circumstances under which an asylum seeker could be released from detention (on “parole”—a form of permission for a noncitizen to be in the country temporarily), typically when detention space is insufficient. Past administrations (including Trump’s) going back decades have used the “parole” statute in very similar ways, but since President Biden took office, red states have claimed that parole cannot be used in this way—regardless of the humanitarian cost of gratuitously jailing migrants, including families, fleeing persecution and violence. 

Thus far the red states have been winning, particularly in the district courts, (where they have the most control over which judge will hear the case). Florida provides the most recent example; on Thursday it obtained a temporary restraining order (TRO) of the Parole with Conditions policy a few hours after asking Judge Wetherell (yes, the same Florida judge that blocked a prior parole policy) to issue it. Judge Wetherell is expected to convert the TRO into a preliminary injunction in the coming day(s), after which the Biden Administration will ask the Atlanta-based Eleventh Circuit Court of Appeals to stay (pause) Judge Wetherell’s decisions pending the full appeal. 

Not to be outdone (and perhaps thinking the 11th Circuit won’t be as accommodating as the 5th?), on Friday, Texas requested to amend its current lawsuit against the CHNV parole programs to also challenge the Parole with Conditions policy (it also requested a TRO, even though Florida already has one). Texas could, of course, have simply filed a new lawsuit, but the CHNV case is before Judge Tipton, who (as of February) is no longer in a one-judge division—meaning that Texas can no longer file anywhere and be 100% assured of Judge Tipton getting assigned its case. Given Florida’s TRO, Judge Tipton said Friday that he would not rule on the TRO request for now and would permit regular briefing (including by the Intervenor Defendants represented by JAC, RAICES and UCLA CILP) on Texas’s request to add the unrelated parole memo claims. 

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As always, we’ll keep you posted on these and other cases.

Thanks for reading,

Esther Sung

Legal Director

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