“The view of most people who have studied this is that whenever Title 42 is lifted, it will create a significant operational challenge,” said Doris Messner, director of the Migration Policy Institute’s US Immigration Policy Program. “The real question in my mind is, how quickly can appropriate procedures be restored and implemented so that this challenge is minimized?”
The termination of Title 42 would mark the end of a contentious legal battle and the dawn of a new political battle, in which the administration’s immigration policies would be tested once again. It has been a vexing issue for the White House since the early days of the Biden presidency. But it could get more complicated soon.
Earlier this month, a Washington-based federal judge blocked the use of Title 42, a public health authority that border officials have used more than two million times during the Covid pandemic to expel asylum-seeking immigrants, even though many of them were frequent crossers. The judge argued that its use was no longer compatible with the status of a pandemic, where vaccines and treatments are widely available and travel in the United States is increasing exponentially. The Justice Department requested a five-week deferral to “resolve issues related to resources and logistics,” and the judge agreed to push back the start date of his order to December 21.
When asked about the steps DHS is taking to prepare, an administration official pointed Politico to the “Six Pillar Plan” announced earlier this year, as well as its efforts to counter cartels and people-smuggling networks. The plan focuses on “increasing resources”—such as personnel, transportation, medical support, and facilities to support border officials—strict enforcement of border laws, increasing the efficiency of CBP processing, and strengthening NGO capacity.
“As was the case before Title 42 went into effect and will continue to be the case thereafter, individuals encountered at the border without a legal basis for remaining in the United States will be subject to immediate removal,” another administration official said in a statement. .
According to the court’s response, the administration plans to fully return to the state’s previously, and historically, immigrant processing procedures outlined under Title 8. This would allow the government to remove from the state anyone unable to establish a legal basis — such as an approved asylum application. Mayorcas told lawmakers during a hearing last week that his department plans to “promote the use” of these rapid removals at the southern border.
In requesting the five-week delay, the DOJ said the Department of Homeland Security needed additional time to find resources to prepare for the transition from Title 42 to Title 8 processing.
The resource gaps are likely related to the need for officers to screen and process an influx of asylum seekers, said Greg Chen, senior director of government relations for the American Immigration Lawyers Association. There is also significant concern about immigration courts, which ended fiscal year 2022 with a backlog of 1.9 million cases, according to Transactional Records Access Clearinghouse, a nonpartisan research organization at Syracuse University.
Because of the unprecedented level of irregular migration ending at the southern border, Chen said, the administration will need more asylum officers, court staff and other resources to shore up the system than it did two years ago.
It appears that both the Trump and Biden administrations are relying on Title 42 to limit migrant flows to the US-Mexico border for reasons unrelated to the spread of Covid.
But Republicans have fought to keep the system in place. While Biden’s White House attempted to end the program earlier this year, a Louisiana-based federal judge is acting on a lawsuit brought by 24 states led by Republicans.
Ending the directive is expected to fuel Republican attacks, particularly in the House of Representatives, where Republican leader Kevin McCarthy has called on Homeland Security Secretary Alejandro Mayorkas to resign.
But Biden also faces pressure from within his ideological tent. Advocates have long called for Title 42 to be ended, arguing that there is no rationale for its use once pandemic fears subside.
The end of politics is unlikely to end the criticism. With an influx of people and a faltering system, Chen said, immigrants could spend months in detention centers — another part of the system the administration is likely to beef up in preparation. These facilities have been criticized for dangerous overcrowding, health and hygiene problems, as well as impeding legal access to them.
Chen said the expanded use of detaining people who reach the border is “very controversial.” “It’s a system that seriously lacks adequate oversight to ensure that people are treated humanely.”
Even with time, Chen said, many of the resources required would require legislative action. But the odds of the Republicans and Democrats striking a deal are slim.
“We’re open to the fact that, despite all the progress we’ve made, we continue to operate within the constraints of a broken, decades-old immigration system that Republican officials refuse to let us fix,” an administration official told Politico.
Angela Kelly, who served as Mallorcas’ senior immigration advisor until May and is now senior policy and partnerships advisor at the American Immigration Lawyers Association, said administration officials always knew Title 42 would expire at some point, and that preparations were under way. Some of this planning appears to be evident in the data.
Compared to 2021, fewer people were expelled this fiscal year under Title 42, while the number of immigrants allowed to have their asylum claims heard nearly doubled — possibly reflecting the move to Title 8. In September, 72,472 immigrants were expelled at the southern border under Title 42, while 135,125 were arrested under Title 8, according to US Customs and Border Protection data.
The administration has also made an effort to speed up the asylum application processing system. A new rule released by the ministry this spring gives asylum officers — not just judges — the power to decide who qualifies and who should be refused. In the long term, this will lead to faster and fairer asylum procedures, said Meissner, the former immigration commissioner. But this new process is also overburdened with resource needs and has so far only been applied to treat a small number of people.
Kelly expects a rough start coming on December 21st, but once the processing is back up and running, she expects the stress on the system to stabilize. However, she warns that problems will plague the southern border given the current state of the immigration system President Joe Biden has promised to fix.
“It’s really like a Rubik’s Cube. The day after the Title 42 drops, I think it will swap different colors. And then over time, the different sides will be the same color,” Kelly said. “But it will take some time, and it will still be imperfect because our system needs to be updated.”