States win delay, for now, in White House plan to end Title 42 at border

Border Patrol agents used Title 42 to transport migrants found near Sasabe back to the U.S.-Mexico border, in this photo from March 2020, the early days of the order. More than 1.8 million people have since been turned back under Title 42, which the Biden administration wants to end May 23. (Photo by Jerry Glaser/U.S. Customs and Border Protection)

WASHINGTON – White House officials said Tuesday that a potential court order delaying the end of Title 42 would only worsen the border crisis that state officials claim they are trying to prevent by seeking the order.

The comments came one day after a federal judge agreed with three states, including Arizona, to temporarily stop the administration’s plan to lift the pandemic-era border policy on May 23. Title 42 has been used to turn away more than 1.8 million migrants since it was invoked in March 2020.

But senior Biden administration officials said Tuesday that if a federal district judge in Louisiana goes through with the temporary restraining order to keep Title 42 in place, it would hamper Department of Homeland Security efforts to prepare for increased immigration when the policy is ultimately lifted. A full hearing on the order is set for May 13.

“When the Title 42 order is lifted, we intend to significantly expand the use of expedited removal through our Title 8 authorities, and thereby impose long-term law enforcement consequences on those who seek to cross the border without a lawful basis to do so,” said one administration official in the background press briefing.

“It really makes no sense to us that the plaintiffs would demand that the court would order that DHS be stopped in its use of expedited removal, which again is going to prevent us from adequately preparing for the aggressive application of immigration law when the public health order expires,” the official said.

Arizona Attorney General Mark Brnovich, who led Louisiana and Missouri attorneys general in the lawsuit to keep Title 42, hailed the order from U.S. District Judge Robert R. Summerhays.

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“We applaud the Court for approving our request for a Temporary Restraining Order to keep Title 42 in place,” Brnovich said in a statement Monday. “The Biden administration cannot continue in flagrant disregard for existing laws and required administrative procedures.”

The states filed their suit on April 3, shortly after the administration said it would end Title 42, and later asked for a restraining order on news reports that Customs and Border Protection had already stopped enforcing the policy.

The suit claims that the administration is woefully underprepared for what it calls “an imminent, man-made, self-inflicted calamity” and argues that Title 42 is the only policy keeping the immigration system and border from falling into “unmitigated chaos and catastrophe.”

Administration officials said during Tuesday’s briefing that DHS is working with other agencies on a “six pillar” plan to cope with an influx of migrants: surging resources, increasing CBP personnel, improving processing efficiency, administering consequences for unlawful trade, bolstering detention capacity and targeting transnational criminal organizations. But they also said that if Summerhays imposes a restraining order, they will abide by it.

The action comes as border numbers reached their highest level in 22 years, with 221,303 encounters with migrants at the southern border in March. CBP said 109,549 of those migrants were turned away under Title 42.

Title 42 is a public health policy invoked at the outset of the COVID-19 pandemic by the Trump administration to prevent asylum-seekers from bringing the virus. Since it was first invoked, it has resulted in more than 1.8 million expulsions, 1.35 million of which came during the Biden administration.

Advocates criticized the policy from the start, saying it exposed migrants to violence and unhealthy living conditions as they waited in makeshift camps south of the border.

“Title 42 violates U.S. asylum law and the Convention Against Torture, and this lawsuit drops all pretense of this being about public health,” said Greer Millard, a spokesperson for the Florence Immigrant and Refugee Rights Project. “The Florence Project and our partner organizations have the experience and expertise to welcome migrants, and we are ready, willing, and able to support the reopening of humane asylum processing at the border.”

After mounting pressure from advocates to end the policy, the Biden administration announced in April that it would end the policy due to the slowing of the pandemic, the wide availability of vaccines and the lifting of other pandemic protections.

Critics raised concerns that DHS was not ready to handle the expected surge in migrants. Even some border state Democrats – including Arizona Sens. Mark Kelly and Kyrsten Sinema and Reps. Tom O’Halleran and Greg Stanton – have backed bills to keep Title 42 in place until the administration creates a plan to handle the influx.

Kelly told Politico on Tuesday that the temporary restraining order did not satisfy his concerns, as the administration still does not have a plan to handle the increase.

“I’d like to see a plan from the administration,” Kelly said. “The courts are separate from what we do here. It doesn’t change my requirement that I want to see them have a plan that’s workable.”

But more-progressive Democrats like Rep. Raul Grijalva, D-Tucson, say the justifications for Title 42 are past and it’s time to end the program.

“He (Grijalva) still believes that Title 42 is a weaponized Trump-era public health policy to deny asylum seekers their legal rights and not real border policy,” said Grijalva spokesperson Jason Johnson in an email. “The Biden administration still has time to implement a comprehensive plan and should end Title 42.”

Reagan Priest Ray-gan Priest (she/her/hers)
News Reporter, Phoenix

Reagan Priest expects to graduate in May 2024 with a master’s degree in mass communication. Priest has also worked at The Copper Courier, The State Press, Cronkite News D.C., The Arizona Republic and Arizona PBS.