Request to Delay

On Wednesday, February 3, 2021, the Supreme Court postponed oral arguments and legal filings in cases regarding an asylum policy and Trump’s border wall at the request of Biden’s Justice Department. The asylum case was to be heard on March 1 and the wall case on February 22. The Supreme Court’s action likely means that the cases will be pronounced “dead” as a legal matter.

Acting Solicitor General Elizabeth Prelogar filed motions Monday asking the court to postpone both cases due to the Biden administration’s reconsideration of the policies at issue. The Justice Department said the administration will undertake an assessment “of the legality of the funding and contracting methods used to construct the wall.” Biden has directed that there be a “pause in construction” for that purpose. Just hours after he took office, he signed a proclamation calling for border wall construction to cease. Last year the ACLU, Sierra Club and Southern Border Communities Coalition asked the Supreme Court to block wall construction.

Legality of the Wall

One of Trump’s central campaign planks was to “build the wall.” Congress refused to appropriate the money he wanted for the wall, so Trump shifted military funds lawmakers had earmarked for other purposes to pay for his pet project. The legality of this move is at issue.

Trump redirected $2.5 billion for the wall from military anti-narcotics programs. These funds are for wall construction in California, New Mexico and Arizona. The funds were to pay for more than 100 miles of the wall.

Trump insisted the wall was imperative to stop illegal immigration and drug trafficking between the U.S. and Mexico. He also insisted that Mexico would pay for the wall. Mexico would not. Democrats consider the wall to be expensive, ineffective, and immoral.

Asylum

In a separate case about the Trump policy requiring non-Mexican immigrants to remain in Mexico while waiting for their asylum claims to be processed and waiting for their U.S. Court dates, the Justice Department requested the Supreme Court to suspend oral arguments. The court agreed. Homeland Security recently stopped enrollments in that program, working toward ending it entirely.

Trump said the policy minimized the flood of migrants from Central America into the U.S. However, the 70,000 migrants in the program, many of them children, have endured violence and homelessness while waiting. There have been documented cases of assaults, rapes, and kidnappings.

The “Remain in Mexico” policy is being challenged by immigrant rights groups, including Innovation Law Lab.

On February 2, 2021, Biden announced a formal review of the program.

Pausing Land Grabs

The Biden administration is also pausing lawsuits Trump launched to acquire private land for the purpose of building the border wall. During Trump’s presidency, dozens of lawsuits had been filed to that end. In one court document the Justice Department filed on January 22, they asked for a continuance of “at least 60 days” in a land seizure case because of Biden’s Inauguration Day proclamation that required a review of funds segregated for wall construction.

Ricardo de Anda, attorney for Guillermo Caldera, a Texan whose property was at risk, advised that the Justice Department said it would dismiss a motion for immediate possession of Caldera’s land. “We are heartened by the court taking judicial notice of the Executive Order signed by President Biden halting construction of Trump’s border wall, in ordering the government to notify the court and the parties as to whether it intends to proceed with the taking of Texan properties,” de Anda said. He expects the same type of motions in two other cases.

Ricky Garza is a staff attorney at the Texas Civil Rights Project. The landowners in land seizure cases represented by this advocacy group are in a holding pattern, according to Garza. “There’s been movements towards a pause and that’s positive. What needs to happen now is the administration reviews and dismisses all these cases.”

According to Rep. Henry Cuellar (D-TX), “…I received notification that in compliance with President Biden’s executive order, real estate acquisition activities such as surveys and negotiations with landowners have been placed on hold in coordination with the U.S. Army Corps of Engineers.”

The Army Corps of Engineers provides oversight and direction of border projects. Raini Brunson, a spokesperson from that group, said they have “suspended work on all border infrastructure projects for DoD and DHS until further notice.”

Senior staff attorney with the ACLU’s National Security Project, Dror Ladin, said, “It’s a good start that the Biden administration is not rushing to defend Trump’s illegal wall in court, but just hitting the brakes isn’t enough. Trump’s wall devastated border communities, the environment, and tribal sites. It’s time for the Biden administration to step up for border communities, and commit to mitigating environmental damage and tearing down the wall.”

The Trump administration hurried case filings over the last four years to try to build additional barriers on the Mexican border. Some landowners backed the wall; others did not.

Joseph Hein, whose Laredo property was being reviewed as a build site, described the last four years as “being in a state of limbo.” “I was basically at the mercy of them giving me the information that they wanted to give me, and basically the information that they were giving me was nothing,” he said.

Going Forward

The Biden proclamation ended Trump’s national emergency, stopping the use of Pentagon funds and requiring review of contracts. Ongoing border wall cases are now “in a state of limbo.” What will happen to them? Shortly after Biden’s proclamation, Judge Haywood Gilliam directed the parties in one wall lawsuit to provide updates by February 16.