Title 42 nears an end, marking a shift in U.S. immigration policy at the border

WASHINGTON — A pandemic-era measure that allowed for the swift expulsion of millions of migrants at the Southwest border is set to end Thursday, and the Biden administration and state officials across the U.S. are bracing for a potential increase in asylum seekers.

At the same time, House Republicans this week are pushing through a border security package that reflects hard-line immigration policies used during the Trump administration, including a return to construction of a border wall.

The Biden administration has tried to grapple with immigration at the U.S.-Mexico border through various parole programs and processing centers in Central America that encourage an orderly immigration process, as well as sending thousands of personnel to the border. But Republicans, Democrats representing border states and state officials have criticized the White House for a lack of federal preparedness for when Title 42 ends.

President Joe Biden on Tuesday admitted that once the policy ends, “It’s going to be chaotic for a while.”

Title 42 is a public health policy used to expel migrants during a health emergency, such as the coronavirus pandemic. It was initially employed by the Trump administration and continued through the Biden administration under federal court orders. More than 2.5 million migrants were expelled under the policy.

Several cities in Texas — Brownsville, Laredo and El Paso — in anticipation of the end of Title 42 have already declared a state of emergency, and Democratic Gov. Katie Hobbs of Arizona released a strategy on Monday that permits emergency resources to be tapped if needed. 

In the U.S. Senate, lawmakers from both parties are attempting to pass a bill that would temporarily grant the Biden administration the authority for two years to expel migrants in the same capacity as Title 42. Backers include Republican Sen. Thom Tillis of North Carolina, independent Sen. Kyrsten Sinema of Arizona and Democrat Joe Manchin III of West Virginia.

The bill is unlikely to meet the 60-vote threshold.

House Republicans are also moving to pass their own border-related legislation. House Speaker Kevin McCarthy said passage of the bill, known as the Secure the Border Act of 2023, is expected Thursday, when Title 42 is set to expire.

“We are trying to find solutions,” McCarthy, a California Republican, said Tuesday about the bill. “We’re trying to be responsible. We’re trying to be sensible.” 

The bill, H.R. 2, is a symbolic rebuke against the Biden administration that would limit the use of an app that migrants use to make appointments to apply for asylum, resume construction of a building a wall that runs 900 miles along the U.S.-Mexico border and appropriate millions for retention bonuses for border patrol officials and for hiring of 22,000 officers.

The White House has vowed to veto it, and it also likely has little future in the Senate.

DHS says it is preparing

During a Wednesday press conference, Department of Homeland Security Secretary Alejandro Mayorkas stressed that the agency has prepared to transition back to its Title 8 policy when Title 42 ends Thursday. He said the Title 8 policy will carry harsh consequences for migrants who do not follow some of the legal pathways to immigration the U.S. has set up, such as applying for parole programs and requesting asylum in another country they travel through.

Mayorkas said more than 83,000 migrants have been able to schedule asylum interview appointments through the CBP One app. 

With Title 42, if migrants are expelled, they are not barred again for trying to claim asylum or disqualified from applying to parole programs, but under Title 8, they would be immediately removed from the U.S. and subjected to a five-year ban from claiming asylum. They could face criminal charges if they try to re-enter the U.S. without authorization.

“Our overall approach is to build lawful pathways for people to come to the United States, and to impose tougher consequences on those who choose not to use those pathways,” Mayorkas said.

Mayorkas said that officials are already seeing a large increase of migrants in certain areas at the border and that the federal government has distributed an additional $332 million to support affected communities.

He added that DHS is limited in its ability to manage migration at the U.S.-Mexico border and that Congress needs to provide additional resources and to pass immigration reform. The last time Congress passed a major immigration measure was during the Reagan administration in 1986.

“The solutions we are implementing are the best available within our current legal authority, but they are short-term solutions to a decades-old problem,” Mayorkas said.

In the week leading up to the end of Title 42, senior administration officials, who spoke to reporters on background, pushed back on the narrative that the Biden administration has not prepared for the winding down of Title 42.  

“We have been … preparing for the lifting of Title 42 public health emergency measures at the border for well over a year now,” a senior administration official said on a Tuesday call with reporters. 

A senior administration official said the Biden administration has hired an additional 1,000 asylum officers to conduct credible fear interviews for asylum seekers. A credible fear interview is when a noncitizen has the opportunity to establish that they have a fear of persecution, torture or fear of returning to their home country, and that individual may qualify for asylum in the U.S.

The government has also hired another 1,000 new Border Patrol processing agents and 1,400 medical and support staff, along with enlisting 400 volunteers, to help with an increase of asylum requests at the border. 

There are also 24,000 Border Patrol agents and field officers from U.S. Customs and Border Protection deployed at the border, a senior administration official said.

The officials said they are “working in a legal framework that is broken and outdated,” and are operating with limited resources. They said Congress has not overhauled the U.S. immigration system to deal with current immigration issues that have displaced more than 20 million people in the Western Hemisphere.

“The COVID-19 pandemic and political insecurity and climate change have exacerbated what was normally pushing people to migrate, (including) already significant levels of violence, and corruption and lack of economic opportunity,” a senior administration official said. 

The senior administration officials added that on top of the parole and family reunification programs the Biden administration has implemented, the administration is planning on following through with harsh penalties for migrants who do not follow some of the legal pathways set up by the administration.

“We know the next couple of days will be difficult, but we believe the plan that we’re putting in place is sustainable and will really set an example to the rest of the world,” a senior administration official said. 

Arizona, Colorado concerns

Criticism of the administration’s strategy has even come from progressive Democratic Rep. Ruben Gallego of Arizona, who is running for Sinema’s Senate seat. He argues that border officials are not equipped to handle the increase of people seeking entry into the country. 

In a May 4 letter to Biden, he raised his concerns about a lack of federal coordination and communication with border town mayors and officials in Arizona “to address a potential influx of migrants.”

Trying to address such complaints, the White House has directed the Department of Defense to send 1,500 troops to the Southwest border for 90 days.

“DoD personnel will be performing non-law enforcement duties such as ground based detection and monitoring, data entry, and warehouse support,” DHS officials wrote in a statement. “DoD personnel have never, and will not, perform law enforcement activities or interact with migrants or other individuals in DHS custody.” 

Colorado Democratic Gov. Jared Polis and Denver Mayor Michael Hancock wrote similar concerns in a letter to Mayorkas, saying that non-border jurisdictions are not receiving federal support in anticipation of the large number of migrants coming in. 

Texas Democrats are also making preparations. U.S. Reps. Joaquin Castro and Greg Casar expedited more than $38 million in funding from the Federal Emergency Management Agency to provide shelter and food for migrant families in San Antonio.

While there is national focus on the winding down of Title 42, more migrants are being removed under Title 8. For fiscal 2023, the total number of Title 8 removals outpaced the number of Title 42 removals on the Southwest border, with 636,173 compared to 419,147, according to data from U.S. Customs and Border Protection.  

Coordination with Mexico

Biden on Tuesday spoke with President Andrés Manuel López Obrador of Mexico about the joint effort between the U.S. and Mexico to “manage unprecedented migration in the region.”

“Toward that end, they discussed continued close coordination between border authorities and strong enforcement measures, in preparation for the return to full reliance on Title 8 immigration authorities at the U.S.-Mexico border, which carry steeper consequences for those removed than expulsion under Title 42,” according to a readout of the meeting provided by the White House.

Both men also discussed expanding joint efforts to address the root cause of migration, according to the White House.

“The president is using the tools he has in front of him because Congress refuses to act,” White House Press Secretary Karine Jean-Pierre said during a Tuesday briefing with reporters.  

One of those tools  is a rule that would ban nearly any migrant who traveled through another country on the way to the U.S. from claiming asylum. Mayorkas said this rule will immediately go into effect once Title 42 ends.

Many Democrats and immigration advocates and legal experts have decried the policy as cruel and unlawful, and say it mirrors a Trump-era policy known as a “transit ban” that federal courts struck down.

More than 51,000 public comments were submitted on the proposed regulation.

The new regulation comes with a steep penalty that mirrors Title 8 consequences. If a migrant does not schedule an appointment at a U.S. port of entry, apply for a legal pathway in the country they traveled through and does not establish a “reasonable fear of persecution or torture,” they are immediately removed to Mexico and subjected to a five-year ban from requesting asylum. 

They also become ineligible to apply for other parole programs the administration has established for nationals from Cuba, Haiti, Nicaragua and Venezuela.  

One of the parole programs allows up to 30,000 migrants each month from Cuba, Haiti and Nicaragua who have U.S.-based financial sponsors and have passed a background check to enter the country legally; they then are allowed to work temporarily for two years. However, if those migrants do not follow those procedures and try to cross the border without authorization, they are immediately expelled to Mexico. 

The White House said because of those parole policies, there has been “a 95 percent drop in border encounters of individuals from Cuba, Haiti, Nicaragua and Venezuela.” A separate program was established for Venezuelans.

Recently, the White House announced the use of processing centers in Colombia and Guatemala to create legal pathways for migrants in anticipation of the ending of Title 42.  

The U.S. also plans to allow as many as 100,000 nationals from Honduras, Guatemala, and El Salvador to qualify for a family reunification parole processes that DHS recently announced.

GOP border package

But congressional Republicans have advocated to keep Title 42 in place.  

Nearly a dozen Senate Republicans sent a letter to the White House asking the Biden administration to reverse its decision to end Title 42. They’ve also held press conferences, urging the administration to keep the policy in place, arguing that officials at the border will be overwhelmed. 

Throughout the year, House Republicans have held multiple hearings about immigration at the border, vowing to bring forth border security-related legislation when Title 42 was set to end in May, and threatening to introduce articles of impeachment for Mayorkas. 

In a statement, the administration said the Secure the Border Act of 2023 under debate in the House “makes elements of our immigration system worse,” and “does nothing to address the root causes of migration, reduces humanitarian protections, and restricts lawful pathways, which are critical alternatives to unlawful entry.”

“The bill would cut off nearly all access to humanitarian protections in ways that are inconsistent with our Nation’s values and international obligations,” according to the White House.