The Biden administration is planning to lift the Title 42 border controls that authorities have relied upon during the past two years of the pandemic, but the restrictions will not end immediately, according to two officials familiar with the preparations.
The Trump administration implemented the Title 42 order in March 2020, characterizing the measure as an emergency safeguard to prevent the spread of infection inside detention cells, border stations and other crowded settings. The order has allowed border authorities to bypass normal immigration screening procedures and rapidly expel border crossers to their home countries or to Mexico without affording them a chance to seek humanitarian protection under U.S. law.
U.S. Customs and Border Protection has carried out more than 1.7 million of these “expulsions” over the past 24 months, the majority under President Biden.
The decision to ease Title 42 carries political risks for Biden whose administration’s border performance rates poorly in opinion polls. Arrests along the southern border reached an all-time high last year, and this year’s pace is on track to go even higher. The border is a major campaign issue for Republicans aiming to take control of the House and Senate in the November midterm elections.
The administration’s plan was first reported by the Associated Press.
A White House spokeswoman said Wednesday that lifting the order is the CDC’s call and that the president and senior administration officials have not interfered with that decision-making process. But if the CDC rescinds Title 42, the official said the Biden administration expects even higher numbers of migrants at the border.
“We have every expectation that when the CDC ultimately decides it’s appropriate to lift Title 42, there will be an influx of people to the border,” White House Communications Director Kate Bedingfield said at a press briefing Wednesday. “And so we are doing a lot of work to plan for that contingency.”
The most immediate challenge facing U.S. agents along the border is the soaring number of adult migrants they are taking into custody, particularly from Mexico. Over the past week, U.S. agents have made more than 7,000 arrests per day on average, and Homeland Security officials are making contingency plans for that number to increase sharply when Title 42 is lifted.
Their immediate concern is a repeat of the chaotic scenes witnessed last September in Del Rio, Tex., when thousands of mostly Haitian migrants waded across the Rio Grande, overwhelming U.S. capacity. Authorities responded to that incident by using the Title 42 order to carry out mass deportations to Haiti, measures denounced by leading Democrats.
Thousands more Haitian migrants are believed to be waiting in Mexico in anticipation of the end of Title 42, according to DHS officials familiar with the government’s planning and preparations.
Republicans demanded Wednesday that the Biden administration keep Title 42 in place for public health reasons, noting that travelers are still wearing masks on airplanes and buses and that an even higher influx would overwhelm the Border Patrol and distract them from stopping drug and human smugglers. Admitting migrants into the United States will only add them to the massive backlogs in federal immigration courts, leaving cases unresolved, they said.
Sen. James Lankford (R-Okla.), a member of the Senate Committee on Homeland Security and Government Affairs, said he has been asking the Biden administration for months about its plan for a post-Title 42 scenario. He said he was disappointed by the administration’s contingency work.
“Their plan is to move people into the country faster,” Lankford said at the news conference. “That’s their whole plan. What they have worked on, apparently for a year, is the way to expedite people crossing the border and moving into the interior at a faster rate.”
DHS officials say they will deport migrants who do not qualify for protection under U.S. law. But during previous peaks of unauthorized border crossings, they have conducted mass releases, directing migrants to voluntarily report to authorities later on.
Biden officials said they are girding for the influx by expanding CBP holding capacity with temporary tent facilities, while scaling up their transportation networks and adding personnel who can support emergency operations at the border.
In an article in the New England Journal of Medicine last week, physicians and health advocates from medical schools and nonprofits argued that the rationale for the order is “unsupported by evidence” and in some cases, “blatantly false.”
The authors said the policy has inflicted harm on migrants pushed back to dangerous homelands or crime-ridden border cities in Mexico, where some have been attacked.
“There is no evidence that noncitizens who lack documentation are more likely to transmit covid than are residents, citizens, or tourists entering the country,” they wrote. “Asylum seekers represent a small fraction of the travelers who cross the border; in the same period in which 1 million asylum seekers were expelled, nearly 100 million other travelers were admitted at U.S. land borders.”
Democratic leaders such as Senate Majority Leader Charles E. Schumer (N.Y.) and Sen. Robert Menendez (N.J.) have been urging the Biden administration to end the program, citing the dangers migrants face. Rep. Raul Ruiz (D-Calif.), a medical doctor and chair of the congressional Hispanic Caucus, said low transmission rates, quarantine programs and vaccines make the end an imperative. “Enough is enough,” he said this week.
But others have been raising alarms, mainly Republicans but also some prominent Democrats, such as Sen. Joe Manchin III (W.Va.) and Sens. Kyrsten Sinema and Mark Kelly of the border state of Arizona who fear the administration is unprepared for an even larger influx at the southwest border.
Manchin wrote to CDC Director Rochelle Walensky on Tuesday urging her to keep the order in place, warning of rising border crossings and increasing covid-19 cases in parts of Europe and Asia. “Now is not the time to throw caution to the wind,” he wrote.
The Biden administration has also been facing legal pressure to end Title 42.
After a federal judge in Texas ruled this month the government could no longer exempt unaccompanied minors from being expelled, the CDC officially terminated the policy for that group on March 11.
In that order, Walensky said CBP could mitigate covid transmission for children and teens traveling without a parent because they had a robust testing program and access to Health and Human Services shelters where the minors could recover.
But she said CBP told the CDC it could not offer the same to single adults and families.
“Due to operational and facility constraints, CBP reports that it is not able to replicate this robust coronavirus testing and isolation program for (single adults) and (family members) in its custody,” Walensky wrote.
Further pressure to alter Title 42 came from an appeals court ruling this month that said the government could expel families, but not to nations where they might face persecution or torture. The court found the administration’s claim that the policy slowed covid transmission “questionable.” The ruling is expected to take effect in late April, according to the American Civil Liberties Union, which filed the lawsuit on behalf of migrant families.
“We are not cavalier about the risks of COVID-19,” the D.C. appeals court wrote. “And we would be sensitive to declarations in the record by CDC officials testifying to the efficacy of (the restrictions). But there are none.”