Director for Defense Oversight

With this series of updates, WOLA seeks to cover the most important developments at the U.S.-Mexico border. See past updates here.

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Due to upcoming staff travel, WOLA’s May 15 Border Update will be reduced to a curated list of links to stories. The next full edition of the Update will appear on May 29.

Big cases in the federal courts: Appeals courts struck down the Trump administration’s day-one ban on asylum access at the U.S.-Mexico border and its requirement for mandatory detention of improper border crossers. An appeals court upheld Texas’s controversial S.B. 4 law. All cases are likely headed to the Supreme Court, which heard arguments on the administration’s termination of TPS for citizens of Haiti.

Bill with $70 billion more ICE and Border Patrol funding moves forward: The House approved, and President Trump signed, a bill funding all of DHS except for ICE and Border Patrol in 2026. Both chambers’ Republican majorities are now working on a bill that would fund ICE and Border Patrol unconditionally through 2029; they hope to pass it using a rarely invoked procedure that would avoid the filibuster and allow it to pass without Democratic votes.

Third-country deportations intensify: The administration sent its first planes carrying citizens of other nations to the Democratic Republic of the Congo and Paraguay, and its second and third planes to Costa Rica.

Border wall updates: Texans are confused about the status of possible plans to build border wall segments in and near Big Bend National Park. The top authorities in all 14 of the state’s border counties wrote to DHS demanding more transparency and consultation. Environmentally sensitive areas in the Rio Grande Valley have lost the protection from wall construction that earlier legislation had provided. The Tohono O’odham Nation is facing plans to build a double border wall through its land in Arizona and Sonora.

Notes from Mexico: Links to recent reporting on migrants stranded in Mexico by the Trump administration’s crackdown and, in many cases, seeking to settle there. Also, stories about recent organized crime violence impacting migrants in Mexico and border security.

Big cases in the federal courts

D.C. Circuit strikes down administration’s day-one asylum ban

On April 24 the Washington, D.C. Circuit Court of Appeals ruled that the Trump administration’s Inauguration Day proclamation suspending the right to apply for asylum at the southern border is unlawful. The 2-1 decision, which the administration is certain to appeal, brings the restoration of asylum access at the border somewhat closer.

On January 20, 2025 the new administration, claiming an “invasion” of migrants, proclaimed that protection-seeking migrants could not invoke Sec. 208 of the Immigration and Nationality Act (INA), which has enshrined the right to seek asylum since 1980, until President Donald Trump determines that the “invasion” is over. Since then, U.S. border authorities have turned away most protection-seeking migrants apprehended at the border, though there are small carve-outs for harder-to-attain statuses like Convention Against Torture protection.

The unavailability of protection has almost certainly resulted in people being forced to return to situations where they faced imminent threats of death or persecution. It is a central reason why arrivals at the U.S.-Mexico border, measured in Border Patrol apprehensions and Customs and Border Protection (CBP) encounters, have plummeted since Donald Trump took office.

The challenge to asylum suspension is now nearly 15 months old:

On February 3, 2025, three border-region organizations that represent asylum seekers (RAICES, Las Américas, and the Florence Immigrant and Refugee Rights Project), assisted by national groups that carry out human rights litigation, filed suit in Washington DC district court to block the suspension. They argued that no legal authority exists to suspend asylum access, and that the Trump administration improperly sought to do so with Section 212(f) of the INA, which allows the president to suspend the entry of a class of aliens.

In July 2025, Washington DC district court Judge Randolph Moss struck the suspension down, but largely stayed the ruling while the government appealed.

The Appeals Court panel, with judges originally nominated by presidents Obama, Trump, and Biden, heard arguments in November.

The Court’s April 24 decision stated that the INA does not authorize the President to remove migrants “under procedures of his own making” or to suspend their right to apply for asylum. “If the Government wishes to modify this carefully structured and intricate system, it must present those arguments to the only branch of government able to amend the INA: Congress,” wrote Judge J. Michelle Childs, a Biden appointee. Trump appointee Judge Justin Walker dissented in part, agreeing the executive branch cannot deport migrants to countries where they face persecution but arguing the president retains broad discretion to deny access to the asylum system.

“The court’s opinion does not mean there are now open borders, but only that the United States will no longer be one of the few countries in the world who, after World War II, does not provide a hearing for those fleeing persecution,” said ACLU attorney Lee Gelernt, who argued the appeal. “The court properly made clear that the president cannot simply waive away the laws enacted by Congress.”

The decision does not mean that the asylum system is being “switched back on” at the U.S.-Mexico border. White House spokesperson Abigail Jackson said the Trump administration would “seek further review of this badly flawed decision,” which means appeal either to an “en banc” panel of all of the D.C. Circuit judges or to the Supreme Court. “The order doesn’t formally take effect until after the court considers any request to reconsider,” the Associated Press explained.

TPS in the Supreme Court

The Supreme Court heard arguments on April 29 about the Trump administration’s termination of Temporary Protected Status (TPS) for about 350,000 citizens of Haiti and 6,000 citizens of Syria living in the United States. The Court consolidated two separate cases to consider the TPS terminations together.

Established by a 1990 law, TPS allows the President to grant temporary, documented status to nationals of countries experiencing armed conflict, natural disasters, or other “extraordinary and temporary conditions” that would threaten their safety if deported. TPS is temporary and requires periodic review, during which the Secretary of Homeland Security must consult relevant agencies to assess whether conditions in the protected citizens’ country have improved. If the Secretary does not act to terminate TPS, the status automatically renews.

During the Trump administration’s first year, Homeland Security Secretary Kristi Noem sought to terminate TPS for all 13 nationalities that came up for review, out of 17 that had some form of the status when the Biden administration ended. Noem’s terminations placed over 1 million people at risk of returning to potentially dangerous conditions, including approximately 600,000 Venezuelans, 350,000 Haitians, 51,000 Hondurans, 11,700 Afghans, and people from Burma, Cameroon, Ethiopia, Haiti, Nepal, Nicaragua, Somalia, South Sudan, Syria, and Yemen. Four countries (El Salvador, Lebanon, Sudan, Ukraine) have not yet come up for review.

Federal courts have stayed TPS terminations in several of these cases; a major exception is Venezuela: in March and October “shadow docket” decisions, the Supreme Court allowed the administration’s TPS termination for Venezuelans to take effect while lower courts considered the case.

The Supreme Court’s ruling on the Haiti and Syria cases is expected in late June or early July. “After nearly two hours of arguments, it seemed that the court’s decision could come down to the votes of Chief Justice John G. Roberts Jr. and Justice Amy Coney Barrett,” both Republican nominees, the New York Times reported. Justice Barrett has two adopted children from Haiti.

Three key points are at issue. First, whether the law enables judges to review the Homeland Security Secretary’s decisions to terminate TPS. Second, whether Noem followed proper procedures in the Haiti and Syria cases. And third, whether “racial animus,” given Donald Trump’s and J.D. Vance’s strongly pejorative comments about Haitian populations in communities like Springfield, Ohio, motivated the termination for Haiti.

Whether Noem properly considered security conditions in Haiti before her decision, as the law requires, is strongly in doubt. The original 2010 TPS designation occurred after an earthquake that killed over 100,000 people, and security conditions are worse now than they were then, as violent gangs now control much of the country, especially the capital, Port-au-Prince. The State Department’s own travel advisory for Haiti is set at Level 4, “Do Not Travel,” the highest category. It advises U.S. citizens who must go to “prepare a will and any last instructions” and “consider hiring a professional security organization.”

Despite that, when the case was before District Judge Ana Reyes, the main evidence of Noem’s required “consultation with appropriate agencies” was a single email exchange with the State Department conducted on a Friday afternoon after litigation had commenced, to which State responded in 53 minutes saying it had “no foreign policy concerns.” Ashley Holland, a researcher at U.S. Citizenship and Immigration Services, wrote in an email of receiving a “command” to claim, without “any empirical evidence,” that the issuance of TPS had caused more Haitians to migrate to the United States. (TPS is offered to people who arrived in the United States before a certain date, not new arrivals.)

In a column, longtime New York Times Supreme Court reporter Linda Greenhouse departed from her usual caution to predict that the Trump administration will lose the Haiti-Syria TPS case. She cited the Court’s decision to block the TPS termination while deliberations proceeded, the opposite of what it had done in the Venezuela case. Even if the Court keeps TPS in place, however, the Trump administration could try to terminate it again, this time producing evidence that it consulted more fully with relevant government agencies.

The arguments came 13 days after the House of Representatives passed a bill to extend TPS for Haitians through 2029, with 10 Republicans and one Republican-caucusing independent joining Democrats in a 224-204 vote. It was the first time a chamber of Congress had successfully challenged an aspect of the Trump administration’s immigration policies. It resulted from a “discharge petition”—a measure to force House leadership to consider a bill by gaining the signatures of more than half of House members—sponsored by Rep. Ayanna Pressley (D-Massachusetts). The bill moved to the Senate, where the Republican majority has no intention of taking it up. Sen. Katie Britt (R-Alabama), who chairs the Senate Appropriations Homeland Security Subcommittee, said the Haiti TPS bill was “dead on arrival.”

Circuits are split on the administration’s mandatory detention policy

On April 28 in New York, a unanimous three-judge panel of the 2nd Circuit Court of Appeals rejected the Trump administration’s policy of subjecting migrants with active immigration cases to mandatory detention without bond hearings if they had ever crossed the border improperly.

The policy, instituted in a July 2025 ICE memo, has resulted in abrupt detentions of people who have lived in the United States for years or decades without a criminal record. Before then, mandatory detention was usually applied only to very recent border crossers and immigrants convicted of certain crimes. The Justice Department’s Board of Immigration Appeals, which the Trump administration has packed with its own appointees, upheld the policy in September.

Now, because it is the only way for attorneys to get their clients out of detention, the July 2025 “no bond” policy has brought a flood of habeas corpus petitions: ProPublica counts 40,840 habeas petitions filed since January 2025, up from an average of 934 per year between 2008 and 2024.

Judge Joseph Bianco, a Trump appointee writing for the panel (joined by Clinton appointee Jose Cabranes and Biden appointee Alison Nathan), called it “the broadest mass-detention-without-bond mandate in our Nation’s history for millions of noncitizens” and found it based on a “flawed, implausible and unprecedented interpretation” of a 1996 immigration law. “The government’s interpretation” of that law, Bianco wrote, “would send a seismic shock through our immigration detention system and society, straining our already overcrowded detention infrastructure, incarcerating millions, separating families, and disrupting communities.”

The 2nd Circuit is the first appellate court to reject the mandatory detention policy: appeals courts in two conservative circuits, the 5th and 8th, have sided with the administration with 2-1 rulings. At the district court level nationwide, however, a running list maintained by Politico finds that of 467 judges known to have ruled on habeas corpus petitions, only 47 have sided with the administration.

With different circuits coming to different conclusions, the split “could put the long-simmering dispute on a trajectory to the Supreme Court,” wrote Kyle Cheney, Politico’s senior legal affairs reporter who closely monitors immigration litigation.

With an April 24 en banc decision, a 10-7 vote, the full 5th Circuit’s justices cleared the way for Texas’s Senate Bill 4 to take effect. Passed by Texas’s Republican state legislature in 2023, S.B. 4 empowers state and local police to arrest migrants who cross illegally from Mexico, to deport them if they agree to be sent there, and to jail them if they do not. (Mexico’s government has stated that it will not receive individuals deported by non-federal agencies like Texas authorities.)

Critics of S.B. 4 have pointed out that because the statute is in effect statewide—not just in border zones where police might witness someone in the act of crossing from Mexico—it could empower police anywhere in Texas to stop and possibly arrest anyone whom they suspect of having, at one time, crossed the border illegally. That is a high-probability scenario for........

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