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Biden administration will rescind border expulsion policy

Announcement comes after months of pressure from Democratic lawmakers and immigrant advocates

An asylum seeker waits to board a Customs and Border Protection bus to an immigration facility, after turning herself in at the U.S-Mexico border in Yuma, Arizona, in February.
An asylum seeker waits to board a Customs and Border Protection bus to an immigration facility, after turning herself in at the U.S-Mexico border in Yuma, Arizona, in February. (Anadolu Agency via Getty Images)

The Biden administration said Friday it would lift Title 42, a public health directive that has allowed border agents for the past two years to expel migrants at U.S. borders in a stated effort to stem COVID-19 spread.

The termination would be implemented by May 23 “to enable DHS time to implement appropriate COVID-19 mitigation protocols,” according to the Centers for Disease Control and Prevention, which reviews the directive every 60 days.

“After considering current public health conditions and an increased availability of tools to fight COVID-19 (such as highly effective vaccines and therapeutics), the CDC Director has determined that an Order suspending the right to introduce migrants into the United States is no longer necessary,” according to the termination order signed by CDC director Rochelle Walensky.

DHS and State Department officials told reporters Friday that the delayed implementation would give the administration time to ramp up a vaccination program for migrants in border processing.

The rollback of Title 42, named after the section of health law it comes from, will likely cause a sharp increase in migration at the U.S.-Mexico border, which is already experiencing historically high numbers of border encounters with migrants.

Border agents logged more than 900,000 encounters with migrants since Oct. 1, the beginning of fiscal 2022 — roughly double the number of migrants encountered over the same time frame in fiscal 2021. More than half of those encounters resulted in a Title 42 expulsion, according to tlatest government data.

On Wednesday, White House Communications Director Kate Bedingfield said the administration has “every expectation” that once Title 42 is lifted, “there will be an influx of people to the border.”

Pressure from Congress

The CDC announcement comes after months of pressure from Democratic lawmakers and immigrant advocates, who said the directive barred migrants from seeking asylum and other protections under U.S. immigration law.

They also questioned the persistence of Title 42 as a public health measure when American borders have reopened to vaccinated travelers and other COVID-19 restrictions nationwide have been rolled back.

“More than a year since the Biden administration took office, it’s unacceptable that this policy continues to be used indiscriminately,” Senate Majority Leader Charles E. Schumer, D-N.Y., said last month. “Title 42 goes against everything this country stands for.”

When President Joe Biden first took office, his administration exempted unaccompanied migrant children from the order — a decision that prompted thousands of minors to enter the country and forced the government to scramble to arrange proper care.

An end to wider use of Title 42 could prompt a similar influx of asylum seekers, and senators on both sides of the aisle have questioned the Department of Homeland Security’s preparedness.

DHS officials told reporters earlier in the week the department had been preparing for a possible increase in migration, outlining three possible scenarios, including one where daily migrant encounters top 18,000. Homeland Security Secretary Alejandro Mayorkas on Friday confirmed a plan was in position. Currently, border patrol agents encounter roughly 7,100 migrants per day.

“We have put in place a comprehensive, whole-of-government strategy to manage any potential increase in the number of migrants encountered at our border,” Mayorkas said in a statement. “We are increasing our capacity to process new arrivals, evaluate asylum requests, and quickly remove those who do not qualify for protection.”

Department-wide preparations involve technical assistance from the Federal Emergency Management Agency, interagency coordination with the Justice and Defense departments, and contracts with air and ground transportation companies to transport migrants. They also include the construction of temporary facilities to accommodate a possible influx of migrants.

However, on Friday’s call with reporters, DHS and State Department officials said irregular migration would likely continue without immigration legislation that addresses flaws in the decades-old U.S. immigration system as well as the root causes of migration.

“The only long term solution to these periodic surges that we have seen over the last decade under Presidents of both parties can only come from comprehensive legislation and lasting reform,” one official said, who was not authorized to speak publicly. “And that can only happen with our friends in Congress.”

Lawmakers react

Some Democrats praised the administration’s decision to rescind the policy. Rep. Pramila Jayapal, D-Wash., who chairs the Congressional Progressive Caucus, called the rescission the “right and moral thing.”

“It is hard to overstate the widespread and negative impact Title 42 has had,” she said in a statement Friday. “Since the beginning of the pandemic, more than 1.7 million people have been expelled under Title 42 – desperate people fleeing famine, violence, and war. Our nation has failed these people, plain and simple. But no more.”

Several moderate Democrats, however, came out against the decision to terminate the policy on Friday.

Sen. Joe Manchin III, D-W.Va., called Title 42 “an essential tool,” and the decision to end it “frightening.” He said the government is “nowhere near prepared to deal with” an influx of migration after the order is lifted.

“Until we have comprehensive, bipartisan immigration reform that commits to securing our borders and providing a pathway to citizenship for qualified immigrants, Title 42 must stay in place,” he said.

Sen. Maggie Hassan, D-N.H., and Sens. Mark Kelly and Kyrsten Sinema, both Arizona Democrats, have also raised concerns about the administration’s preparedness to handle an increase in migration to the border.

Congressional Republicans, who have long argued that more lenient border policies encourage irregular migration, have slammed the Biden administration for failing to adequately plan for a post-Title 42 border strategy.

In a Friday statement, Rep. John Katko, R-N.Y., the ranking member of the House Homeland Security committee, compared lifting Title 42 amid high migration levels to “throwing gasoline on a raging fire.”

“We’re still wearing masks on airplanes and buses and public transportation, but people are continuing to pour across the border and put the rest of this country at risk,” Sen. John Cornyn, R-Texas, told reporters earlier in the week. He warned if Title 42 expires without a sufficient plan to manage a migration spike, Border Patrol agents “will simply lose control of the border.”

Sen. James Lankford, R-Okla., said on Twitter he would block the remainder of Biden’s homeland security nominees “until DHS provides us a plan that will end the chaos.”

Title 42 has been the subject of a litany of litigation spearheaded by the American Civil Liberties Union and other advocates.

U.S. District Judge Emmet Sullivan of the District of Columbia has twice found the federal government lacks the legal authority to expel migrants under existing public health laws, in two cases brought by unaccompanied migrant children and migrant families.

However, in March, a three-judge panel for the District of Columbia Circuit Court of Appeals reversed part of Sullivan’s order protecting migrant families.

The appeals court said the Biden administration may expel migrant families from the U.S. without hearing their asylum claims, but barred the government from sending them to countries where they would likely be persecuted or tortured.

Hours after the appeals court decision, a Texas federal judge ordered the government to start expelling unaccompanied migrant children under Title 42 following a separate lawsuit by Republican officials.

The CDC issued a new Title 42 memo officially exempting children in response to the Texas court order.

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