Last spring, the Biden administration prepared a plan as it faced the potential end to Title 42. That’s the public health rule that has allowed border agents to expel migrants without giving them a chance to apply for asylum under the justification that it was for pandemic safety.
The original plan called for get-tough measures with migrants, as well as funding for nonprofits that assist migrants.
Title 42′s lifting was put on hold as challenges went through the courts.
Now the public health rule has been ordered by a federal judge to be lifted by Dec. 21.
On Wednesday, the Biden administration says it will decide whether to appeal the ruling, according to a court filing by the Justice Department. And the administration may revisit some of those earlier proposed measures, according to reports by Axios and CBS News.
“As was the case before Title 42 went into effect and will remain the case after it, individuals encountered at the border and without a legal basis to remain in the United States will be subject to prompt removal,” according to a prepared statement by the Biden administration on Tuesday.
The Centers for Disease Control and Prevention had argued that the order was needed to combat COVID-19. But with changes in public health conditions and the availability of vaccines and other therapies, Title 42 was no longer needed, the CDC said in April.
That set off a legal fight over Title 42. Nineteen states are still trying to keep the order, according to a federal court filing.
Since March 2020, Title 42 has been used more than 2.4 million times. But its use has been declining because of the U.S.’s frosty diplomatic relations with key countries with poor deportation pacts, as well as the Mexican government’s refusal to take back migrants from certain countries.
In September and October, Title 42 was used only about a third of the time by the U.S. Border Patrol. For the fiscal year 2022, Title 42 was used about half the time, down from about two-thirds of the time the previous year, according to U.S. Customs and Border Protection.
According to the U.S. Department of Homeland Security, when the Biden administration first expected Title 42 to end in May, the original plan called for:
- Increased use of fast-track deportations called “expedited removal.” The plan called for “administering consequences for unlawful entry, including removal, detention and prosecution.” The plan said single adults will be referred for prosecution “for those whose conduct warrants it.”
- Acceleration of asylum adjudications so that those who do not qualify for legal relief to stay in the U.S. are removed. “We’ve been working to accelerate asylum processing times so those without a legal basis to remain can be removed promptly,” a Biden administration official said Tuesday. “Already, processing times for some recent encounters have come down from years to a few months because of our reforms.”
- Surging resources to the border. In late April, U.S. Customs and Border Protection, part of the Department of Homeland Security, had 23,000 agents and officers working along the Southwest border.
- Bolstering the capacity of nongovernmental organizations. Reimbursement for certain services provided by local agencies is available through the Federal Emergency Management Agency.
- Targeting human smugglers who “peddle misinformation that the border is open, in order to profit from the vulnerability of migrants.” The administration official said Tuesday: “We’ve set up anti-smuggling operations with Mexico and Guatemala to disrupt the criminal smuggling networks preying on migrants.”
- Working with nations in the Western Hemisphere. The plan notes that more people are displaced from their home than at any time since World War II. It emphasizes working with the Mexican government to deter “irregular” migration. “And we’ve brought together 20 world leaders to collectively manage migration flows across the Western Hemisphere,” the administration official said Tuesday.
“As we prepare to transition to the next phase of our work to manage the border in a safe, orderly, and humane way, the Department of Homeland Security will continue to double down on these proven strategies,” the Biden administration official said. “Expect to hear more from them in coming weeks on what that will look like.”
