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U.S. appeals court ruling means border expulsions on track to end Dec. 21

Venezuelans, who traveled through the Darien Gap, Central America and Mexico together, are pictured in a makeshift encampment on the banks of the Rio Grande in Ciudad Juárez, Mexico, on Nov. 18. (Paul Ratje for The Washington Post)
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A federal appeals court on Friday cleared the way for the Biden administration to end a covid-related policy that allows officials to expel migrants from U.S. borders, rejecting a push by Republican officials to keep enforcing the removals.

The decision means the policy known as Title 42 started by the Trump administration, will end Dec. 21, unless the Supreme Court intervenes. The GOP officials had signaled in court records that they would appeal to the Supreme Court.

The court ruling represents a victory for immigration advocates in their quest to fully reopen the borders to asylum seekers who have been expelled without a chance to plead their cases, and for the Biden administration, which agrees that the hard-line policy should end. But the Department of Homeland Security is straining to manage an influx of migrants that could balloon in the coming weeks and overwhelm the Border Patrol, as well as cities and towns that are hosting the newcomers.

A three-judge panel in the District of Columbia denied a motion the Republican officials had filed seeking an emergency stay of the Biden administration’s plans to end Title 42. The states sought to intervene in a lawsuit filed on behalf of migrant families seeking to end the expulsions.

“In this case, the inordinate and unexplained untimeliness of the States’ motion to intervene on appeal weighs decisively against intervention,” wrote Judges Florence Pan, Justin Walker and Patricia Millett of the U.S. Court of Appeals for the District of Columbia Circuit, noting that the lawsuit had been pending for almost two years.

The states had appealed after U.S. District Judge Emmet G. Sullivan struck down Title 42 in mid-November, saying the ban had little proven benefit to public health, and set the Dec. 21 deadline for the administration to end it.

Advocates who had sued on behalf of migrants to restore asylum proceedings at the border cheered the ruling Friday.

“Title 42 must end because it is a public health law, not a border management tool,” said Lee Gelernt, a lawyer with the American Civil Liberties Union, one of the organizations that brought the case. “The states seeking to keep Title 42 are acting hypocritically, to say the least, since they have opposed every COVID restriction except the one targeting vulnerable asylum seekers.”

Republicans and Democrats are warning that there could soon be an unmanageable influx of migrants at the southern border with the end this week of of Title 42. (Video: The Washington Post)

The Department of Homeland Security referred questions to the Justice Department, which had no immediate comment. White House spokesman Abdullah Hasan said in an email late Friday that lifting Title 42 “does not mean the border is open” and that the government intends to enforce immigration laws in a “safe, orderly, and humane way.”

More than 2.4 million people have been expelled, mostly from the southern border, since the Trump administration imposed the order in March 2020, ostensibly to prevent the spread of the coronavirus, though advocates argued that he used the measure to slash immigration.

Republican officials from 19 states including Texas, Arizona, and Alaska had asked the court to approve an emergency order stopping the administration’s plans to fully reopen the borders. Officials said a large increase of migrants on the border would burden states with the costs of providing services such as health care to the newcomers.

Ending Title 42 would “unleash a catastrophic shock to the States’ social services and law-enforcement systems,” the states said in a court filing Thursday.

Title 42 allows U.S. officials to regulate migration by expelling migrants, often within minutes of their arrival. By contrast, formal deportation hearings can take months or years in the backlogged immigration courts, and once immigrants are in the country, it can be difficult for authorities to find and remove them. About 69,000 of the estimated 11 million undocumented immigrants in the country were deported last year, federal data show.

Department of Homeland Security officials warned this week that lifting Title 42 will not end immigration enforcement. Anyone ineligible for asylum could be prosecuted for the crime of crossing the border illegally, which typically does not happen with expulsions, and then deported and banned from reentering for five years.

At times, officials have released migrants quickly to make room for newer arrivals. Officials said earlier this year that they are preparing for as many as 18,000 arrivals a day, more than double current numbers, but a federal official speaking on the condition of anonymity to discuss internal figures said this week officials are estimating that from 9,000 a day to 14,000 a day could arrive if Title 42 ends.

The Department of Homeland Security this week urged Congress to update decades-old immigration laws to manage conditions better, such as improving border security and creating a “fair, fast, and functioning asylum system.”

“Despite our efforts, our outdated immigration system is under strain,” Homeland Security Secretary Alejandro Mayorkas said in a statement. “A real solution can only come from legislation that brings long-overdue and much-needed reform to a fundamentally broken system.”

Federal officials say conditions could be improved by creating more legal pathways into the United States to alleviate labor shortages and reunite families. The number of Venezuelan arrivals plunged from 1,100 a day to under 100 a day after the administration began expelling them to Mexico and required them to apply for a sponsor to host them. Officials have said they are considering expanding that program for Venezuela and possibly other countries, though it remains unclear whether it will work after the border reopens.

DHS officials say migration has changed in ways that make managing the flows more difficult. Decades ago most migrants were men from Mexico who could easily be sent home. Now more families and children are crossing, and from a broader array of countries. In October, migrants from Nicaragua, Venezuela and Cuba — countries that have diplomatic relations with the United States that can impede deportations — outnumbered those from Mexico and Central America, federal data show.

Approximately 30 percent of the 2.3 million border apprehensions last fiscal year were teenagers or children who require special care, whether they are traveling alone or with their families, federal records show.

Title 42 has evolved over the past three years in ways that can be confusing, especially to the migrants affected by the program. In the early days of the pandemic, migration plunged and the Trump administration expelled the vast majority of migrants crossing the border.

The Biden administration has expelled a higher number of migrants because more have been attempting to cross. But he also has granted exceptions to thousands of migrants, allowing them to plead their cases. In October, for instance, officials expelled 78,400, and allowed in more than 152,000 for immigration proceedings.

Confusion played out along the southern border this week as some migrants said they would wait until Title 42 is lifted to attempt to cross, while others tried sooner.

Martha Hernandez, a general-store owner from Tegucigalpa, Honduras, said she and her family fled nine months ago after gang members attempted to extort money from them, and found refuge at a shelter in Monterrey, Mexico. She said she was acutely aware that she could be expelled under Title 42 and is seeking a way to cross legally.

“We waited because we wanted to do things the right way,” said Hernandez, who fled Honduras with her husband and children. “We want a chance to restart our lives without fear of harm.”

Other migrants lined up this week in near-freezing temperatures to wade across the Rio Grande in hopes of being allowed into the United States despite Title 42 still being in place. Some were more hopeful because they had heard the policy would soon end, but many were not sure how it worked.

In more crowded areas such as El Paso, hundreds waited in line and slept on floors.

In a cavernous migrant shelter in Eagle Pass, Rudy Somoza, 36, said he fled Nicaragua because sky-high inflation made it impossible to buy bread or pay fees for his 8-year-old daughter’s schooling. He said he had a cousin in Los Angeles who could help him.

“I’m here for her happiness,” Somoza, 36, said in Spanish, referring to his daughter.

Then he switched to fluent English, which he learned because he was a waiter in a fancy tourist resort in his homeland.

“The question is why is everyone angling to reach the United States?” he said. “Because this is a country that offers help, where you can move your family ahead and earn a day’s wages of honest work. In contrast, there is no law and order in my country.”

To qualify for asylum, migrants must face persecution for specific reasons such as their race or political opinion. Many of the newcomers do not qualify for that protection, and they could add to the 11 million immigrants already in the United States illegally, at risk of deportation.

The Biden administration also has warned migrants that the journey is dangerous, with high numbers dying, drowning in the Rio Grande, falling from the border wall, or being kidnapped by extortionists in Mexico.

Mexican officials said this month that they rescued 253 migrants from Nicaragua and other countries after armed bandits tied and blindfolded adults and children, and held them for ransom.

Andres Hernandez, 33, said at the Eagle Pass shelter that he came to the United States seeking a better life as the economy deteriorated in his hometown of Cúcuta, Colombia, a border city near Venezuela. He said he decided to make the journey after a friend in Denver offered to find him a job and give him a place to stay.

Other migrants had told him that the passage through Mexico had gone smoothly. But Hernandez said he would never attempt the journey again.

“I thought getting through the jungle was the hard part,” said Hernandez, who came to the United States to work to support his wife and daughter in Colombia. “But the extortion, criminals and police in Mexico was the worst part. A friend asked me for my advice and I told him not to do it. He should try something else, but don’t travel over land to the U.S.-Mexico border.”

Title 42 and the pandemic brought migration to historic lows in 2020, but the numbers began to climb before President Donald Trump left office and then soared under President Biden for a variety of reasons, including shattered economies and political instability in their homelands, the tug of jobs in the United States, and the perception that Biden’s immigration policies are less restrictive than Trump’s.

At the Eagle Pass shelter, called “Mission: Border Hope,” buses arrived this week ferrying hundreds of tired and disoriented people from around the world, including Ecuador, Cameroon and Vietnam. Many were desperate to find an internet signal to inform their families that they were safe — and to wire them money to pay for flights and bus rides to their destinations in the United States.

Valeria Wheeler, the nonprofit’s executive director, said the shelter expanded into a warehouse in May, when Title 42 was supposed to end before another court temporarily blocked that plan, to respond to rising numbers of migrants in the Del Rio sector about 50 miles away. Federal officials have managed the influx by shuttling migrants to less crowded sectors on the border.

A few days ago, she said, the shelter was serving 1,600 people a day.

“There will undoubtedly be more people,” when Title 42 ends, Wheeler said. “But honestly, I’m okay with that because it was unfair and unjust to prevent so many people from seeking asylum as is their right to do. Whatever happens, we will be here.”

Nick Miroff contributed to this report.