Biden asks Supreme Court to delay oral arguments on border wall and asylum rule

President Joe Biden’s Justice Department asked the Supreme Court on Monday to postpone oral arguments in significant cases regarding former President Donald Trump’s border wall and a controversial asylum policy.

The Justice Department said Biden has directed a “pause in construction” so that the administration can undertake an assessment “of the legality of the funding and contracting methods used to construct the wall.” The American Civil Liberties Union, Sierra Club and Southern Border Communities Coalition asked the Supreme Court last year to block the construction the wall.

Only hours into his presidency, Biden took an immediate shot at one of his predecessor’s key legacies when he signed a proclamation calling for border wall construction to end. The administration’s filing Monday shows how the Biden Justice Department is moving to bring building to a halt, as it reviews the former administration’s actions.

The Biden administration is also beginning to put lawsuits launched under Trump that were intended to acquire private land for the purpose of border wall construction on hold, according to court filings and attorneys.

In a separate case at the Supreme Court, the Justice Department is asking to suspend oral arguments in a case on the Trump-era policy requiring non-Mexican migrants to remain in Mexico until their next court dates in the United States. The Department of Homeland Security recently stopped enrollments in the program, marking a step toward ending it entirely. That case is scheduled for March 1. Thousands of migrants subject to the policy continue to wait in Mexico in dangerous and deplorable conditions.

Organizations challenging the so-called “Remain in Mexico” policy in the lawsuit include the Innovation Law Lab, along with other immigrant right groups.

The Biden administration is set to reverse scores of Trump administration policies. In the short term, Elizabeth Prelogar, Biden’s acting solicitor general, is expected to play a key role managing a wave of potential reversals concerning issues such as immigration, health care, and religion.

Biden is expected to sign more immigration executive actions Tuesday at the White House.

Border wall land grab efforts dropped

During Trump’s presidency, dozens of lawsuits had been filed to take private land for the purpose of building additional barriers on the border, leaving some landowners to juggle legal challenges and the coronavirus pandemic. But with Biden’s wall executive order, those attempts are now on pause.

In one court document, filed on January 22, the Justice Department asked for a continuance in a land seizure case for “at least 60 days,” citing Biden’s Inauguration Day proclamation that in part directs a review of funds siphoned off for wall construction.

In another case, the Justice Department said that it will be dismissing a motion for immediate possession of land, according to Ricardo de Anda, an attorney for Guillermo Caldera, who lives in Laredo, Texas, and whose property was at risk of being taken.

“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 in a statement. Two other cases are expecting similar motions to be filed, de Anda said.

Ricky Garza, a staff attorney at the Texas Civil Rights Project, a legal advocacy group representing landowners in land seizure cases, told CNN property owners are in a “holding pattern.”

“There’s been movements towards a pause and that’s positive,” Garza said. “What needs to happen now is the administration reviews and dismisses all these cases.”

Democratic Rep. Henry Cuellar of Texas, a critic of Trump’s border wall, said last Thursday that the administration had notified his office that the US Army Corps of Engineers was pausing real estate acquisitions in compliance with Biden’s executive order.

“Today, 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,” Cuellar said in a statement.

The Justice Department declined to comment.

The Army Corps of Engineers, which provides direction and oversight of border projects, “has suspended work on all border infrastructure projects for DoD and DHS until further notice,” said Raini Brunson, a spokesperson for the agency.

Dror Ladin, senior staff attorney with the American Civil Liberties Union’s National Security Project, praised the decision to delay the Supreme Court oral arguments, but said more needs to be done.

“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,” Ladin said. “It’s time for the Biden administration to step up for border communities, and commit to mitigating environmental damage and tearing down the wall.”

Trump sped up lawsuits

The Trump administration accelerated the filing of cases over the last four years in its efforts to build additional barriers on the southern border. At the heart of those cases were landowners, some of whom backed the wall and others who criticized it.

Joseph Hein, a landowner in Laredo whose property was being reviewed to build on, 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,” Hein said, referring to the Army Corps of Engineers and Customs and Border Protection.

Biden’s proclamation ended Trump’s national emergency declaration, which allowed the previous administration to dip into Pentagon funds, and calls for the review of contracts.

The changes to border wall construction made under Biden so far have also prompted questions in ongoing border wall cases. Shortly after the release of Biden’s proclamation, Judge Haywood Gilliam directed the parties in an ongoing wall lawsuit to provide an update by February 16.