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Biden official: Title 42 end will lead to fewer border crossings

Top DHS official told lawmakers on May 5 that lifting the Title 42 public health restrictions would decrease southern border crossings. (Video: U.S. Senate)

A Department of Homeland Security senior official told a Senate panel Thursday that the record number of migrants crossing the southern border would decrease if the Biden administration is allowed to go forward with its plan to lift the Title 42 public health restrictions on May 23.

Blas Nuñez-Neto, acting assistant secretary for border and immigration policy at DHS, said in response to questions from Sen. Josh Hawley (R-Mo.) that the administration will resume criminal prosecutions and rapid deportations to restore the “consequence delivery” model U.S. Customs and Border Protection has long used as its primary border management tool.

“I think over time, once we start reimposing significant immigration consequences on people at the border through our use of expedited removal, particularly for single adults and particularly for migrants from Mexico, you are going to see a decrease,” Nuñez-Neto told the Senate Homeland Security and Governmental Affairs Committee.

The statement was significant because the Biden administration has been projecting a spike in border crossings after the expiration of Title 42, the pandemic-era emergency public health order that authorities have used since March 2020 to summarily deport asylum seekers and other migrants.

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Republican-led states are challenging Biden’s plans to lift the order on May 23, pointing to DHS’s own preparations for border crossings to potentially double.

Hawley responded to Nuñez-Neto’s statements with feigned astonishment. “Wow, that is news!,” he said. “That is news, ladies and gentlemen! You still clearly want to rescind Title 42 and you think rescinding it will decrease illegal immigration at the border!”

But the point Nuñez-Neto was making is a more nuanced one that has been shared quietly among migration analysts and some CBP veterans. Because the Title 42 “expulsion” process carries no legal consequences, many adult migrants are attempting to cross again and again until they can successfully sneak past U.S. agents. Nearly 30 percent of the migrants apprehended by CBP are such “recidivist” crossers, data show.

By resuming criminal prosecutions of those individuals, repeat offenders can be charged with a felony and jailed for up to two years in federal prison. If the Biden administration ramps up prosecutions and makes more aggressive use of the fast-track deportation process known as expedited removal, border crossings will begin to decline, Nuñez-Neto told the senators.

“Title 42 has had a really interesting effect on migration, in that, because of the number of repeat border crossers we see, it has actually inflated our numbers at the border,” he told Hawley.

Mexico agrees to take back more Cubans and Nicaraguans expelled under Title 42

Hawley and other Republicans lay blame for the border numbers squarely on the Biden administration’s decision to roll back Trump-era enforcement policies. They point to figures showing the release of more than 1 million migrants into the United States who crossed the border and requested asylum or some form of humanitarian protection since Biden took office.

Nuñez-Neto noted that Mexican adult migrants are once more the largest demographic group detained along the border. They accounted for about 40 percent of all arrests during the first seven months of fiscal 2022. Most are quickly turned back without facing criminal charges, a dynamic not unlike the 1980s and 1990s era of mass migration from Mexico.

CBP has made more than 1.2 million immigration arrests along the southern border during the first seven months of fiscal 2022, which started in October. That is on pace to easily exceed the 1.73 million arrests recorded during fiscal 2021, an all-time high.

Last month CBP stopped border-crossers more than 234,000 times, up from 221,000 in March, according to preliminary enforcement data obtained by The Washington Post.

The current volume of roughly 7,000 to 8,000 border arrests per day could go as high as 18,000 soon after Title 42 is lifted, according to the worst-case modeling scenarios drafted by DHS.

The U.S. government has only about 25,000 detention beds available in its network of immigration jails, and when the system reaches overcapacity the government is typically forced to release migrants into the United States with instructions to report to authorities later.

Citing those capacity limits, Republicans and some Democrats have been calling on the Biden administration to reconsider its plans to lift Title 42. A federal judge in Louisiana has temporarily blocked the administration from implementing its plans to start phasing out the public health order, siding with Republican-led states that said they would face major fiscal strains from a new influx of migrants.

Nuñez-Neto and other Biden administration officials have told the court they need to be able to resume prosecutions ahead of the May 23 deadline to return to an enforcement model with consequences for illegal entries by those who lack credible asylum claims.

The next hearing in the case is May 13.