Tag Archives: Trumpera

Chief Justice John Roberts joins with liberals to criticize ‘shadow docket’ as court reinstates Trump-era EPA rule

Chief Justice John Roberts joined the court’s liberal justices in dissent, arguing that the court’s majority had “gone astray” by granting an unwarranted request on its emergency docket.

“That renders the Court’s emergency docket not for emergencies at all,” Justice Elena Kagan wrote for the four dissenters. She said that the Republican-led states and others that had petitioned the court for emergency relief had not shown they would suffer the necessary irreparable harm to make their case.

“This Court may stay a decision under review in a court of appeals only in extraordinary circumstances and upon the weightiest considerations,” Kagan wrote. She said the challengers’ request for a stay rested on “simple assertions — on conjectures, unsupported by any present-day evidence.”

The majority’s move, Kagan insisted, signals the court’s view of the merits even though the applicants have failed to make the irreparable harm showing “we have traditionally required.”

The emergency docket, she said, “becomes only another place for merits determination — except without full briefing and argument.”

The five conservative justices did not explain their reasoning for reinstating the Trump-era rule.

The emergency docket — referred to by some justices and outside observers as the “shadow docket” — has increasingly come under criticism by those who say that important issues are being resolved without the benefit of full briefing schedule and oral arguments.

While the court’s liberals, especially Kagan, have often criticized the use of emergency petitions, this is the first time Roberts has explicitly joined in.

“We’ve seen Chief Justice Roberts join the Democratic appointees in dissenting from some of the Court’s prior shadow docket rulings,” said Steve Vladeck, a CNN Supreme Court analyst and professor at the University of Texas School of Law, who is penning a book on the shadow docket. “But today’s ruling is the first time he’s joined in publicly criticizing the majority for how it is using and abusing the shadow docket. That’s a pretty significant development, and a strong signal for the Court’s de facto leader to be sending.”

In the dissent, Kagan wrote that the challengers had failed to offer “concrete proof” that they would be harmed if the Environmental Protection Agency rule were not reinstated. She noted specifically that they had waited five months after the lower court vacated the rule to make their request. In addition, she said, a federal appeals court is set to hear the dispute next month and that the rule that is currently in place had previously been on the books for some 50 years.

Last September, conservative Justice Samuel Alito launched a 10-point rebuttal in an unusual speech, defending the court’s practice when it comes to the emergency docket. He said the complications surrounding the emergency requests and said that the justices do “the best we can” under the time constraints imposed by the situation. Alito called criticism “very misleading,” stressing that there is “absolutely nothing new about emergency applications.”

The court’s order on Wednesday reinstates a rule that restricts the authority of states under the Clean Water Act to reject federal permits for projects that affect waters within their borders. The Trump-era rule will go back into effect while the Biden administration issues a new rule which is expected to be finalized by spring 2023.

It is a loss for more than 20 Democratic-led states, the District of Columbia, environmental groups and tribes that challenged the rule put in place by the Trump administration in 2020. They said it limited the abilities of states and local communities to weigh in on projects that could harm their communities. Challengers said the Trump rule could lead to projects — such as a strip mall on a wetland, a hydroelectric project or oil and gas pipelines — that could alter waterways without input from the state.

Earthjustice, representing environmental groups and tribes opposed to the Trump rule, criticized the court’s order.

“The court’s decision to reinstate the Trump administration rule shows disregard for the integrity of the Clean Water Act and undermines the rights of tribes and states to review and reject dirty fossil fuel projects that threaten their water,” said Moneen Nasmith, senior attorney for the group.

A lower court had vacated the rule, prompting a group of Republican-led states and various industries to seek emergency relief from the Supreme Court.

This story has been updated with additional details.

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Biden Administration Fights in Court to Uphold Some Trump-Era Immigration Policies

But, he said, “Making the necessary changes isn’t going to happen overnight.”

Still, many people, including some caught up in the Russian invasion of Ukraine, say time is running out for them.

Iryna Bohdan, a 50-year-old Ukrainian, won a green card lottery in May 2019 through the diversity visa program, which prioritizes countries with low levels of immigration to the United States. But she was barred from entering the United States because of the Trump administration’s pandemic restrictions.

She got her hopes up when Mr. Biden took office because he had celebrated the visa lottery during his campaign and even proposed expanding the program by about 25,000 visas. Last fall, two judges ordered the Biden administration to process the backlogged visas this year.

But Justice Department lawyers have appealed the court orders, saying the government still lacks the resources to process the visa applicants without delaying future winners of the lottery.

This month, the lawyers also argued that the orders would undermine the president’s ability to impose future travel restrictions on other visa applicants, including Russian officials hit with sanctions by the United States for invading Ukraine.

“We don’t know what to do,” said Ms. Bohdan, who fled to Poland this month with her 14-year-old twin sons. Speaking through a translator, she said her family had been visiting relatives in northeast Ukraine before the war began and did not have time to go home to get clothes, belongings or the animals they care for at their veterinary clinic.

Vitali Demchenko, who won the visa lottery more than two years ago, said he now stayed up at night in his home in Ternopil, in western Ukraine, listening for sirens warning of a Russian attack, just in case his family needs to hide in a bomb shelter.

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Biden administration ends Trump-era border policy for unaccompanied migrant children

While Biden has conveyed progress in combating the coronavirus pandemic, the administration has sent a conflicting message on the border by continuing to largely bar migrants from seeking asylum using a pandemic emergency rule.

But in the early hours of Saturday morning, the Centers for Disease Control and Prevention terminated the public health order known as Title 42 as it relates to unaccompanied migrant children arriving at the US-Mexico border.

The Biden administration had already exempted minors arriving at the border without their parents from being subject to the authority, but a court ruling last week would’ve forced the administration to restart the expulsion of minors.

Judge Mark Pittman of the US District Court for the Northern District of Texas had ruled against the administration’s decision to exempt unaccompanied migrant children from being subject to the authority and gave the administration seven days to appeal or restart expulsions of unaccompanied children. That deadline came Friday.

In a statement just minutes after midnight, the CDC said: “In the current termination, CDC addresses the court’s concerns and has determined, after considering current public health conditions and recent developments, that expulsion of unaccompanied noncitizen children is not warranted to protect the public health.”

In a 21-page order justifying the decision, CDC Director Rochelle Walensky cited numerous protocols to reduce the spread of Covid-19 among migrant children, including testing, physical distancing and wearing masks.

Unaccompanied migrant children are transferred to the custody of the Department of Health and Human Services after they’re apprehended at the US southern border. HHS also has mitigation protocols in place, including testing and vaccines for those eligible.

Single adults and migrant families, though, continue to be subject to the public health order, meaning they can still be turned away at the US southern border. Operational and facility constraints have kept US Customs and Border Protection — which first encounters migrants — from replicating the same protocols for families and adults in its custody, according to the CDC.

Still, the CDC’s decision is significant as it marks a winding down of the public health authority that’s been in place for nearly two years despite pushback from public health experts, immigrant advocates and Democratic lawmakers.

A federal appeals court recently ruled migrant families couldn’t be removed to places where they will be persecuted or tortured, though that hasn’t taken effect yet. The US Court of Appeals for the District of Columbia Circuit also expressed skepticism in its ruling about the basis of the order, particularly the premise that it guards against transmission in congregate settings, or specifically US-Mexico border facilities.

Public health experts have repeatedly refuted the justification of the public health order. And on Saturday, top Senate Democrats, including Majority Leader Chuck Schumer, blasted the administration for its decision to partially uphold Title 42.

“We are deeply disappointed in the Biden Administration’s decision to maintain Title 42,” Schumer, along with Sens. Bob Menendez of New Jersey and Alex Padilla of California, said in a joint statement. “While we recognize that the Administration made the right choice to prevent unaccompanied children from being expelled, it is wrong that they made the decision to continue sending families with minor children back to persecution and torture.”

CNN’s Manu Raju and Sonnet Swire contributed to this report.

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Federal appeals court limits Biden administration’s use of Trump-era border policy, Title 42

The Biden administration has been relying on a public health authority, known as Title 42, that allows authorities to turn back thousands of migrants arrested at the US-Mexico border — and fielding fierce criticism from immigrant advocates who argue the Trump-era border policy puts people in harm’s way.

Friday’s ruling limits the use of the public health authority, particularly for asylum seekers fleeing danger, according to immigrant advocates.

“The Title 42 policy was enacted by the Trump administration and retained by the Biden administration to block people from seeking refuge from persecution or torture,” American Civil Liberties Union attorney Lee Gelernt said. “The court’s opinion puts an end to using Title 42 to summarily expel those seeking protection from persecution or torture.”

Gelernt, who argued the case, said the ruling will require the administration to screen individuals, many of whom are seeking refuge, prior to expelling them instead of simply turning everyone away.

CNN has reached out to the Department of Homeland Security for comment.

Hours later, though, a federal judge in Texas ruled against the Biden administration’s decision to exempt unaccompanied migrant children from being subject to the controversial Trump-era border policy.

The public health authority was invoked at the onset of the coronavirus pandemic, despite suspicions among officials that it was politically motivated. It effectively barred those seeking asylum from doing so and marked a departure from previous protocols.
There have been more than 1 million expulsions since Title 42 went into effect in March 2020, according to US Customs and Border Protection data.
Under former President Donald Trump, authorities also expelled nearly 16,000 children who had arrived at the US southern border without their parents until a federal judge blocked the administration from turning back minors in November 2020.

Friday’s ruling, from Judge Mark Pittman in the Texas Northern District Court, stems from a lawsuit filed by Texas against the Biden administration. In the ruling, Pittman writes: “Here, the President has (arbitrarily) excepted COVID-19 positive unaccompanied alien children from Title 42 procedures—which were purposed with preventing the spread of COVID-19. As a result, border states such as Texas now uniquely bear the brunt of the ramifications.”

The ruling will take effect in seven days, allowing time for the government to appeal.

Pittman’s ruling stands in stark contrast with the skepticism expressed by the DC Circuit over the public health authority. During oral arguments in January, the panel of judges questioned the basis of the order, particularly the premise that it guards against transmission in congregate settings, or specifically US-Mexico border facilities.

Circuit Judge Justin Walker, who wrote Friday’s opinion, reiterated those concerns, calling the administration’s claim that Covid-19’s spread is slowed through use of the order “questionable.”

“But this is March 2022, not March 2020. The CDC’s § 265 order looks in certain respects like a relic from an era with no vaccines, scarce testing, few therapeutics, and little certainty,” the ruling reads, referring to the public health authority.

The panel of judges also states that Customs and Border Protection officials have access to precautionary Covid-19 measures such as vaccines, testing and face masks. “We are not cavalier about the risks of COVID-19. And we would be sensitive to declarations in the record by CDC officials testifying to the efficacy of the § 265 Order. But there are none,” the ruling says.

Last month, the US Centers for Disease Control and Prevention said the public health authority should remain in effect, adding that it will continue to assess the order.

This story has been updated with further developments Friday.

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Small number of Trump-era White House documents set to be turned over to January 6 committee

As the agency that holds all of the Trump White House records, the Archives notified the courts of the imminent turnover in a filing on Tuesday night.

Trump has asked the Supreme Court to block the release of hundreds of pages of records related to January 6, arguing the documents are protected by executive privilege. The Biden White House, however, supports releasing the records to the House select committee, after determining the disclosure is in the nation’s best interest and declining to assert executive privilege.

The Supreme Court has not yet acted.

Even though Trump has not won in lower courts, the appellate court in DC has blocked the release of three tranches of documents pending action from the Supreme Court. The handful of pages the Archives is set to turn over Wednesday are part of a fourth tranche of records.

The Biden administration says it believes those records aren’t covered by Trump’s lawsuit, according to the Tuesday filing. The administration had given Trump a 30-day window to try to convince a court to keep the four pages of records secret, and that window expires Wednesday.

“Because the former President has not obtained such an injunction from any court, the release will proceed as scheduled absent an intervening court order,” the administration wrote in the filing.

The documents are set to go to the House committee at 6 p.m. on Wednesday, according to the filing. It’s not clear what those four pages include.

The select committee is seeking more than 700 pages of disputed documents as it explores Trump’s role in trying to overturn the 2020 presidential election. That includes his appearance at a January 6 rally in which he directed followers to go to the US Capitol where lawmakers were set to certify the election results and “fight” for their county.

The documents include activity logs, schedules, speech notes and three pages of handwritten notes from then-White House chief of staff Mark Meadows — paperwork that could reveal goings-on inside the West Wing as Trump supporters gathered in Washington and then overran the Capitol, disrupting the certification of the 2020 vote.

Trump is also seeking to keep secret a draft proclamation honoring two police officers who died in the siege and memos and other documents about supposed election fraud and efforts to overturn Trump’s loss of the presidency, the National Archives has said in court documents.

Broadly, the Trump White House records could answer some of the most closely guarded facts of what happened between Trump and other high-level officials, including those under siege on Capitol Hill on January 6.

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DHS says it anticipates re-starting Trump-era Remain-in-Mexico policy in November, is rebuilding tent courts

The Department of Homeland Security says it is ready to reinstate the Trump-era Remain-in-Mexico policy by mid-November in response to a court order upheld by the Supreme Court – even as it works to abolish the program by a different method.

A federal judge on Friday ordered the Biden administration to “enforce and implement” what is formally called the Migrant Protection Protocols (MPP) in response to a lawsuit from Texas and Missouri, which claimed that the administration’s attempt to terminate the policy was illegal and harmful. The Supreme Court upheld the ruling.

ARIZONA AG CALLS FOR DOJ TO PROBE FACEBOOK AFTER IT SAYS USERS CAN SHARE INFO ON HOW TO ENTER US ILLEGALLY

MPP was established and expanded in 2019 by the Trump administration and involved sending migrants back to Mexico, rather than being released into the U.S., as their immigration proceedings were heard. The Biden administration began unraveling it earlier this year, even amid soaring migrant numbers, and formally ended it in June before the court ruling ordered a reversal.

Proponents described the policy as incredibly effective, by weeding out bogus or insufficient asylum claims without letting people into the country, and one that helped end the process of “catch and release.” Amid the ongoing border crisis, which has seen hundreds of thousands of migrants hit the border in recent months, with tens of thousands being released into the U.S., Republicans and border officials have urged the Biden administration to re-implement the policy.

Sept. 17, 2021: Scenes from underneath the International Bridge in Del Rio.

However, critics called the process inhumane and one that left migrants open to violence and exploitation on the Mexican side of the border by cartels and other criminals, where migrants gathered in de facto camps.

In a filing on Thursday, the Biden administration said it had made “substantial progress” in re-implementing MPP, even as it says it is seeking alternative ways to end the program.

The filing said it had engaged in talks with Mexico, finalized operational plans and has also issued a task order to rebuild the soft-sided facilities (which were commonly referred to as “court tents”) in Laredo and Brownsville, Texas to the tune of $14.1 million — with a predicted $10.5 million a month in operational costs.

BORDER CRISIS: VIDEO SHOWS SMUGGLER ABANDON 7-YEAR-OLD MIGRANT GIRL 

“As a result of this progress, DHS anticipates being in a position to re-implement MPP by mid-November dependent on decisions made by Mexico.”

The filing emphasizes “DHS cannot implement MPP without Mexico’s independent decision to accept individuals that the United States seeks to send to Mexico” and will need its concurrence on how many entries will be permitted and who will be accepted for return.

They say Mexico has identified a number of changes it would like to see made to MPP, including better coordination and an assurance that cases are generally adjudicated within six months of enrollment.

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In a statement DHS said it is taking “necessary steps” to comply with the order, despite its appeal and efforts to end the policy.

“As announced previously, DHS also will be issuing a memorandum terminating MPP,” a spokeperson said, adding that it would not take effect until the injunction is lifted.

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Gen. Mark Milley faces wave of GOP attacks over Trump-era actions

As Republicans seized on the reports to accuse Milley of violating the chain of command and denigrating the former President, hearings that were meant to examine military and policy missteps in Afghanistan instead devolved at times into a battle between Milley and lawmakers about whether he had become a political actor — a suggestion the four-star general emphatically pushed back on.

“I’m concerned that there’s mischaracterizations of me becoming very politicized as an individual and that it’s my willingness to become politicized, which is not true,” Milley told the House Armed Services Committee on Wednesday. “I am trying to stay apolitical, and I believe I am.”

Milley apologized in the wake of that event, acknowledging that his participation, particularly while in uniform, violated the sacrosanct military ethos of avoiding political activity.

“I have done my best to remain personally apolitical, and to try to keep the military out of actual domestic politics, and I made a point of that from the time I became the Chairman and especially beginning last summer,” Milley said, in an apparent reference to the Lafayette Square event.

As with the Senate Armed Services hearing on Tuesday, some Republican lawmakers used their limited speaking time Wednesday to castigate Milley for spending time over the year since the damaging photo op engaging with writers whose books about the Trump administration paint the general as a champion of democracy and American institutions.

One lawmaker directly accused the four-star general of being more preoccupied with his image than winning wars, while others criticized him for disclosing consequential information to members of the media rather than Congress.

‘Insider Washington books’

“You’re far more interested in what your perception is and how people think about you in insider Washington books, than you care about winning, which this group seems incapable of doing,” Rep. Matt Gaetz, a Florida Republican, said Wednesday about Milley and his colleagues at the hearing, Defense Secretary Lloyd Austin and head of US Central Command, Gen. Frank McKenzie.

In his opening remarks ahead of both hearings, Milley specifically addressed new reporting in “Peril,” a book by veteran Watergate journalist Bob Woodward and Washington Post reporter Robert Costa that details the military leader’s phone conversations to reassure a nervous Chinese general and his efforts to limit then-President Trump from potentially ordering a dangerous military strike.

Milley’s actions, which were reported by CNN and others earlier this month ahead of the book’s release, drew sharp criticism from Trump and his allies, including calls for Milley’s resignation and that he be tried for treason.

The top US general offered a full-throated defense of his actions on Tuesday and Wednesday, telling lawmakers the call with the Chinese official was not only appropriate but that numerous senior Trump officials were aware it occurred. That did not curtail the criticism.

“You chose to talk to reporters instead of us, and that’s of great concern,” said Rep. Mike Turner, citing Milley’s efforts to assuage China’s concern. “No one in Congress knew that one of two of the major nuclear powers thought that they were perhaps being threatened for attack,” the Ohio Republican added.

Some went so far as to accuse Milley of violating his chain of command — even though he had testified that he was reflecting the former President’s intent and that Trump administration officials were apprised of the calls.

“These are two great powers, and I am doing my best to transmit the president’s intent, President Trump’s intent, to ensure that the American people are protected from an incident that could escalate,” Milley said Wednesday.

“I understand your intent,” said Rep. Vicky Hartzler, a Missouri Republican, adding that she still thought it was “worthy of your resignation.”

“I’m not going to tip off any enemy to what the United States is going to do in an actual plan,” Milley shot back. “What I’m trying to do is persuade an adversary, that’s heavily armed, that was clearly and unambiguously, according to intelligence reports, very nervous about our behavior and what was happening inside this country, and they were concerned that we, President Trump, was gonna launch an attack. He was not going to launch an attack.”

“At the direction of the Secretary of Defense, I engaged the Chinese in order to persuade them,” Milley said.

Heated exchanges

Milley also pushed back on criticism about his interactions with the press, including Woodward, telling lawmakers he did not regret speaking to the Washington Post reporter despite acknowledging concerns the book may mischaracterize him as being willing to “become politicized.”

“I think that it’s important for me to speak to the media,” he said, adding at another point that, “I believe that part of my job is to communicate to the media. What we do as a government, what we do as a military, to explain to the people.”

But Milley’s remarks did little to quell the outrage of certain Republicans who accused the chairman of attempting to rehabilitate his image and doing so at the expense of national security.”It seems to me that you put a high priority on making sure that you were favorably portrayed by the DC press corps, you spent a lot of time doing that,” Sen. Josh Hawley said during Tuesday’s hearing.

Hawley, a Missouri Republican who has faced significant criticism for his actions on January 6 and his comments downplaying the attack on the Capitol in the months since, then suggested Milley prioritized efforts to fix his own public image rather than focusing on the deteriorating situation in Afghanistan and called for him to resign.

Gaetz, who is one of Trump’s most outspoken allies in Congress, launched a more pointed attack against Milley Wednesday, eliciting a stern response from the top US general.

“You spent more time with Bob Woodward on this book than you spent analyzing the very likely prospect that the Afghanistan Government was going to fall immediately to the Taliban, didn’t you,” Gaetz charged.

“Not even close, Congressman,” Milley answered.

Gaetz continued on, telling Milley, “we’re not questioning your personal conduct, we’re questioning in your official capacity, going and undermining the chain of command, which is obviously what you did.”

“I did not undermine the chain of command,” Milley responded.

Pennsylvania Rep. Chrissy Houlahan, a Democrat and Air Force veteran, apologized after Gaetz’s tirade and tried to steer the hearing back to questions of substance. She thanked the military leaders for the “opportunity to ask important questions of you, questions that ought to be asked of you in the spirit of our responsibility of oversight, rather than provocation.”

Apologies and visible frustration

The continued attacks on Milley’s dealings with the press appeared to wear on some members as the hearing progressed.

The panel’s Democratic chairman, Rep. Adam Smith of Washington, appeared visibly frustrated and at one point, let out an audible sigh that seemed to encapsulate his feelings about the attack levied by his Republican colleagues. At the end of another round of questioning about Milley’s interactions with book authors, Smith muttered, “that was helpful.”

Rep. Liz Cheney, the Wyoming Republican, also apologized to Milley for Republicans who questioned him during Wednesday’s hearing and applauded his actions related to the January 6 attack on the US Capitol, noting it was “the first time in our nation’s history that we did not have a peaceful transfer of power.”

“General Milley, you found yourself in your constitutionally prescribed role, standing in the breach. And for any member of this committee, for any American, to question your loyalty to our nation, to question your understanding of our Constitution, your loyalty to our Constitution, your recognition and understanding of the civilian chain of command, is despicable,” Cheney said.

“I want to apologize for those members of this committee,” she added.

CNN’s Ellie Kaufman, Jennifer Hansler, Michael Conte, Christian Sierra, Sarah Fortinsky, Corey James and Jeremy Herb contributed reporting

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Supreme Court temporarily blocks Trump-era ‘Remain in Mexico’ reinstatement

In a decision Friday night, the U.S. Supreme Court temporarily blocked a judge’s order calling for the reinstatement of the Trump administration’s “Remain in Mexico” immigration policy following a halt by President Biden.

Justice Samuel Alito issued a temporary stay that will be in effect until Tuesday night so he and the other Supreme Court justices can review the filings submitted in connection with the case, The Associated Press reported.

Alito’s stay came one day after the U.S. Court of Appeals for the 5th Circuit in New Orleans denied a Biden administration request that the reinstatement of the Trump-era policy be delayed.

On Aug. 13 in Texas, a federal judge sided with the attorneys general from Texas and Missouri, who had filed a lawsuit seeking the reinstatement of “Remain in Mexico,” which is also known as the Migrant Protection Protocols (MPP). 

APPEALS COURT DENIES BIDEN ADMINISTRATION’S EFFORT TO DELAY ‘REMAIN IN MEXICO’ RULING

The attorneys general had argued that the Biden administration’s move to end the Trump-era policy was a violation of the Administrative Procedures Act (APA).

Supreme Court Justice Samuel Alito is seen in Washington, March 7, 2019. (Associated Press)

MPP was established and expanded in 2019 by the Trump administration and involved sending migrants back to Mexico, rather than being released into the U.S., as their asylum proceedings were heard.

The policy, in cooperation with Mexico, resulted in court tents being set up along the border in places like Laredo, Texas, where migrants could briefly enter for their hearings before going back to Mexico.

The Trump administration argued that the policy ended “catch-and-release” — by which migrants were released into the U.S. — which it saw as a major pull factor drawing migrants north. Critics said the policy was cruel and led to migrants being put in danger in camps across the border.

The Biden administration promised to end the policy and began processing migrants enrolled in MPP into the U.S. shortly after entering office. In June, it formally halted the program.

Missouri and Texas sued the administration claiming that ending the policy was both illegal in the way that it was done, and that it harmed both border states and states deeper in the interior by encouraging migrants and therefore fueling the crisis at the southern border.

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The lawsuit claimed some of the migrants released would commit crimes in their states, that it would lead to an increase in human trafficking, and that it would lead to higher costs for the states in areas like education and healthcare.

The ruling found that the termination of MPP “has contributed to the current border surge” and that DHS counsel had conceded as much. The judge also noted the increase in border apprehensions from fewer than 80,000 in January to about 173,000 in April when the lawsuit was filed. In July, there were more than 212,000 encounters at the border.

Fox News’ Adam Shaw and The Associated Press contributed to this story.

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Judge orders U.S. to reinstate Trump-era “Remain in Mexico” asylum policy

A federal judge in Texas directed the Biden administration on Friday to reinstate the Trump-era policy of requiring asylum-seekers to wait in Mexico for their U.S. court hearings, saying the program was illegally terminated.

U.S. District Court Judge Matthew Kacsmaryk, who was appointed to the bench by former President Trump, ordered federal officials to revive the so-called Remain in Mexico program until it is “lawfully rescinded” and the government has the detention capacity to hold all asylum-seekers and migrants subject to mandatory detention.

Kacsmaryk delayed the effect of his nationwide ruling by seven days to give the Biden administration time to file an appeal.

In his 53-page opinion, Kacsmaryk said the memo Homeland Security Secretary Alejandro Mayorkas issued in June to formally end the Remain in Mexico policy violated federal administrative law. Kacsmaryk found that Mayorkas failed to consider the program’s “benefits,” which he said included the deterrence effect the policy had on migrants who don’t qualify for U.S. refuge.

Kacsmaryk also determined the reversal of the Trump-era border policy led the Biden administration to violate a section of U.S. immigration law that mandates the detention of certain asylum-seekers, since there’s currently not enough detention capacity to hold all of them.

Friday’s ruling is a victory for Texas and Missouri, which filed the lawsuit against the suspension of the Remain in Mexico rule, formally known as the Migrant Protection Protocols, or MPP.

Kacsmaryk’s ruling found that Texas and Missouri are being harmed by the policy’s reversal because migrants released into the U.S. will use health care services and apply for driver’s licenses, and their children will attend U.S. schools.

The Department of Homeland Security referred questions about Friday’s court order to the Justice Department, which declined to comment.

Created in late 2018, the Remain in Mexico program was the centerpiece of the Trump administration’s efforts in 2019 to deter migration to the U.S. southern border. Approximately 70,000 non-Mexican asylum applicants were enrolled in the program and returned to Mexico, where many found themselves living in squalid tent camps and dangerous border towns.

The practice was scaled back during the coronavirus pandemic, when U.S. border officials were granted emergency powers by the Centers for Disease Control and Prevention to expel unauthorized migrants without allowing them to request asylum. 

The Biden administration has continued to use that Trump-era public health order, known as Title 42, to expel migrant adults and families with children. But it suspended the Remain in Mexico program on the day of President Biden’s inauguration. 

Since then, the Biden administration has allowed 13,000 asylum-seekers previously subjected to the Remain in Mexico rule to enter the U.S. and continue their court proceedings with family or sponsors, according to government data.

In June, Mayorkas signed the formal termination of the MPP rule, saying “any benefits the program may have offered are now far outweighed by the challenges, risks, and costs that it presents.”

Among other reasons, Mayorkas cited concerns about whether “lack of stable access to housing, income, and safety” forced asylum-seekers stranded in Mexico to abandon “potentially meritorious protection claims.”

Mayorkas said he considered other policies to manage “future migration flows” in light of the MPP termination. But Kacsmaryk, the federal judge, said Mayorkas failed to acknowledge warnings that the program’s end could fuel more migration, arguing the reversal “has contributed to the current border surge.”

In July, U.S. agents along the Mexican border made over 212,000 migrant apprehensions — a 21-year monthly high. The Biden administration has attributed the sharp increase in migration to poverty, violence, natural disasters and the pandemic-induced economic recessions in migrants’ home countries.

On Thursday, Mayorkas said another reason could be “the end of the cruel policies of the past administration, and the restoration of the rule of laws of this country that Congress has passed, including our asylum laws that provide humanitarian relief.”

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US-China visa bans: A Trump-era policy that shut out top Chinese students could be hurting America more than Beijing

But a year and a half later, he’s still stuck — and he has no idea when he’ll be able to return to the US.

Hu is one of more than 1,000 Chinese students who spent years working toward studying at a US university, only to have their studies stalled, first by Covid and then by an ambiguously worded visa ban imposed under the Trump administration.

“The ban is based on a simple presumption: If you have been to a certain school, you will be targeted and labeled as a spy,” Hu said. “I think it’s a policy of discrimination based on nationality.

“The combination of the (ban) and the pandemic have led to a complete derailing of (students’) studies, their careers and their lives.”

Experts say the issue goes far beyond the individual students who are directly impacted, warning that shutting out international graduate students who contribute to important STEM studies could have implications for the quality of American research.

It could also impact the ability of US institutions to recruit Chinese students, and exacerbate the already-fraught relations between the two countries.

Covid and a visa ban

For the first few months of last year, a US travel ban to stop the rapid spread of Covid prevented Hu from returning to the US from his hometown in China.

Then, last May, Hu’s problem turned political.

For years, US intelligence has warned that China is using student spies to steal American secrets. The Australian Strategic Policy Institute (ASPI), an independent think tank, says recruiting students is part of China’s military-civil fusion strategy of using civilians to boost its military power, something that has been increasing in the past decade.

“The ban is based on a simple presumption: If you have been to a certain school, you will be targeted and labeled as a spy. I think it’s a policy of discrimination based on nationality.”Dennis Hu

With more than 370,000 Chinese students in the US — almost twice as many as any other source country — US authorities are faced with a major dilemma: how to strike the balance between protecting America’s open academic environment and mitigating the risk to national security.

“It is legitimate to be concerned about vulnerabilities within universities,” said Robert Daly, the director of the Wilson Center’s Kissinger Institute on China and the United States and a former US diplomat in Beijing. But, he adds, it has to be measured against the “enormous benefit we’ve had from the brain drain contribution of Chinese students and scholars over the past 40 years in the United States.”

Beijing has called claims of student espionage “groundless,” arguing that “unsubstantiated” accusations are a type of bigotry and discrimination that will ultimately damage US interests.
Undeterred, Trump signed a presidential proclamation in May last year clamping down on visas for students with perceived military ties.
The proclamation — which Beijing slammed as “political persecution” — claimed China is engaged in a “wide-ranging and heavily resourced campaign” to acquire sensitive US technologies and intellectual property, partly to bolster the Chinese military’s modernization and capability.
The proclamation didn’t specify who would be banned, but Hu was worried. He had studied for his undergrad at Northwestern Polytechnic University — one of seven leading universities administered by the Ministry of Industry and Information Technology (MIIT) whose portfolio includes China’s defense industry.

With the virus raging and travel bans in place, Hu opted to delay his studies by a year. Hu, like other students, hoped Trump’s challenger Joe Biden would be elected and rescind the proclamation, widely known as the PP10043.

But while the Biden administration resumed issuing student visas to Chinese nationals in May, it has continued to defend the proclamation. This month, a US State Department spokesperson told CNN the policy is “narrowly targeted” as it affects less than 2% of Chinese student visa applicants and is needed to protect US research enterprise and national security interests.

That leaves Hu in limbo. If he applies for a new US visa, he fears he’ll be asked about his university record and then rejected under PP10043.

Students caught out

It took Kerry Fang years of study before he was accepted to a PhD program at the University of California, Davis, on a full scholarship, and only 10 minutes for his dream to end at the US Consulate General in Shanghai last month.

Initially, Fang tried to play down that he had studied at a college linked to China’s military. After all, it was seven years ago, and he had letters of support from his US university.

But as the staffer at the US consulate pressed him for answers, the 30-year-old admitted he’d studied at Harbin Engineering University, another leading university affiliated with China’s MIIT. The staffer talked with her supervisor, then began typing.

A few minutes later, he said she handed him a refusal form and told him: “Because of the presidential ban, you cannot get a visa now.”

“I graduated from university seven years ago, and the ban still won’t let me go,” Fang said. “If the US wants to target China, it should not target a specific group of people, and it should give the power to the visa officer, so that the officer can make his own judgment, rather than doing it in this broad brushstroke manner.”

Wan — who CNN is only referring to by his last name due to his fear of repercussions — had a similar experience when he went to apply for his visa in May to pursue a Master’s degree in electrical and computer engineering. The 24-year-old knew Trump had signed something related to Chinese students the year before, but he didn’t think it would impact him.

Wan was only asked two questions at the consulate in Shanghai: where had he gone to undergraduate school, and what was his major.

Once the visa officer heard the name of his school — Nanjing University of Aeronautics and Astronautics, another MIIT-affiliated university — her facial expression changed, he said. She stopped asking questions and kept typing. After a minute or two, she told him his visa was rejected and handed him a piece of paper stamped with the same code: “PP10043.”

Are the students spies?

Since the policy was imposed in May last year, at least 1,000 students have been banned under the proclamation, the US State Department said last year. The State Department has not replied to CNN’s request for updated figures on students affected.

Some were refused a visa, while others had their visas revoked and were expelled from the US. Many others may have decided not to apply for a visa due to the ban.

China’s Ministry of Foreign Affairs has urged the US to withdraw its visa restrictions. Last month, Chinese Foreign Ministry spokesperson Zhao Lijian expressed “grave concern” that some Chinese visa applications had been denied.

“They are of great significance to enhancing mutual understanding between the two peoples and promoting the steady development of China-US ties,” Zhao said, adding the US visa restrictions “carry on a poisonous legacy of the Trump administration and run counter to the US statement of ‘welcoming Chinese students.'”

Chinese officials raised the US visa issue at recent high-level talks with US counterparts in Tianjin, according to Chinese state media.
China’s denials are in part undermined by several cases of espionage prosecuted in the US. In recent years, for instance, student Zaosong Zheng was charged with attempting to smuggle biological research to China, and Chinese electrical engineering student Ji Chaoqun was indicted by a grand jury, accused of acting as an illegal agent.
Institutions with strong military and security links are “disproportionately implicated in theft and espionage,” according to a 2019 Australian Strategic Policy Institute report.
But the US has tended to overstate the threat, said Daly from Wilson Center’s Kissinger Institute on China and the United States. The Department of Justice said it does not track data on cases according to race, ethnicity or nationality. And there have also been a number of high-profile botched prosecutions of Chinese students on espionage-related charges — last month, for instance, US prosecutors asked a judge to dismiss a case against a Chinese researcher accused of concealing her ties to the Chinese military on her visa application, Associated Press reported.

While Chinese espionage is undoubtedly taking place on US soil, the current policy is arbitrary and sweeping, said Eric Fish, author of “China’s Millennials: The Want Generation.” The universities being targeted aren’t military universities per se — they are civilian universities with thousands of students, most of whom have nothing to do with the military, he added.

“(US authorities are) really using a giant machete where they could be using a scalpel,” Fish said.

“(US authorities are) really using a giant machete where they could be using a scalpel.”Eric Fish

While Fish doesn’t think Biden would have initiated the policy, the tense US-China relationship means it might not be a politically savvy time to reverse it.

“If Biden were to rescind this, he would leave himself wide open to attacks from Republicans about being too soft on China, about throwing the door open to Chinese espionage, even though that’s not really what the situation is,” Fish said.

To Hu’s friend Matthew Jagielski, a PhD graduate from Northeastern University, the thought of Hu being a spy is laughable.

“I definitely don’t get the impression that his research is a military sensitive thing. I also don’t get the impression that he is a person trying to sneak in or anything,” he said. “He was very much a staple of the lab … It’s just really unfortunate.”

The cost of shutting out students

It’s not just Chinese students missing out. The Trump-era policy could impact the quality of US research as well, experts say.

Although the students affected make up only a tiny proportion of Chinese students overall, they’re doing some of the most critical research. An estimated 16% of STEM graduate students in the US are Chinese nationals. About a third of top-tier AI researchers did their undergraduate degrees in China, but more than half of them went on to study, work and live in the US, according to Macro Polo, a Chicago-based think tank.

“What you’re doing is you’re keeping out thousands of very high-value Chinese students in very valuable fields that contribute a lot to American research, that contribute a lot to these labs,” Fish said.

Hu’s friend Jagielski puts it simply: “If you have fewer grad students, it means that less research is being done.”

That worries US universities. Though Northeastern, Hu’s university, said it couldn’t comment on specific students, the university chancellor sent a letter to Chinese international students last year, saying it would “challenge shortsighted policies.” In May, the vice provost for international affairs at prestigious Cornell University, Wendy Wolford, wrote to the US Secretary of State, criticizing the “highly charged and ambiguous atmosphere for students.”

“Maintaining the flow of international students to the United States is necessary to both retaining our global preeminence and building stronger cultural and political bridges to the rest of the world,” Wolford wrote.

“We’re telling the world’s biggest talent pool that it is an unwelcome or despised class in the United States, and that harms the American innovation system.”Robert Daly

Fang, for instance, was set to research the International Thermonuclear Fusion Reactor, with the aim of “developing clean energy for the future use of all mankind,” he said.

Hu, ironically, was researching algorithm auditing in a bid to make Google search results more equal. “No matter what ethnicity you are, regardless of men and women, you get this kind of fair and friendly results,” he said. “Even if I am studying at a US university, people all over the world can read my paper. So, from this point of view, even though I am in the US, in some sense I am also contributing to the motherland and the world.”

And the US’s loss is China’s gain. In fact, says Fish, the US policy is helping China do what it’s been trying to accomplish for years — draw its top talent back home.

In recent years, China’s universities have been amping up their research capabilities in an attempt to lure top researchers. But while China’s research output is improving, the US remains the world’s research power house, meaning it’s able to attract top global talent.

“One of the greatest sources of American power is that we still have the best universities in the world that attracts the top talent,” Daly said. “And the excellence of our universities depends on openness and internationalization.”

“China’s attractiveness to talents is now gradually catching up with the United States, because China is a country that is becoming more and more attractive to talent in terms of economic strength,” Fang said. “If the United States does not maintain the academic superiority, this part of the international talent will be lost, and the lost talent may go to China.”

While concerns about espionage are legitimate, the scale of the threat is unclear — and that makes it difficult to balance the potential loss of US intelligence against the benefit of Chinese students.

“It’s not that there’s no issue — the concerns, given everything we know about China, are legitimate,” said Daly, the former US diplomat in Beijing, adding it would be better to target students from sensitive sub-disciplines, rather than going after perceived military links.

“We’re telling the world’s biggest talent pool that it is an unwelcome or despised class in the United States, and that harms the American innovation system,” Daly said. “There will always be vulnerabilities there, but our goal is to manage them and reduce them — not eliminate them entirely. Eliminating all vulnerabilities is shutting ourselves off from the world’s biggest talent pool.”

What will happen next

Some politicians in the US, however, are pushing for even tougher rules.

Republican Senator Tom Cotton has introduced a bill restricting all undergraduate and postgraduate Chinese STEM students, claiming it would “secure American research from Chinese Communist Party espionage and influence.”

“The congressman’s rhetoric is reinforcing the hatred of Asians and Chinese,” Hu said.

Faced with uncertainty over the ban, some students are giving up on the US altogether, and heading to Canada, the United Kingdom, Australia, Singapore or Hong Kong. Wan is one of them — he’s now hoping to get to Australia in the spring. If he can, he says PP10043 will have only wasted six months of his life.

“I just can’t afford wasting a year or two on this just because of the US visa restriction,” he said, adding that he resigned from his job in Nanjing because he thought he would be able to go to the US. “If the time is wasted, it’s a waste of youth.”

Some say fewer Chinese students arriving in the US will reduce cross-cultural understanding at a time when it is needed most.

The move could also alienate prospective students disturbed by the discrimination Chinese students face in the US and the suspicion clouding the US-China relationship.

“I really think when you weigh the miniscule amount of espionage that this might be preventing against the massive competitive disadvantage the US is putting itself at with this, really it’s a very counterproductive move,” Fish said.

“A lot of these students kind of look at the US with wide eyes before coming over, thinking it’s the land of the free — it’s where the top scientists in the world train. And then they get here and they encounter a very uncertain status. I think they go back home with very negative feelings towards the US that they didn’t have before.”

That’s the feeling for Hu, who is still stuck waiting for something to change.

“I feel quite sad. I think we are a group of very serious researchers, but we are being unjustifiably accused and even framed,” he said. “This ban won’t guarantee national security for the US — instead it will endanger America’s academic prestige.”

CNN’s Nicole Gaouette contributed to this report.

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