The Biden administration announced Friday that it is ending the pandemic border emergency order, known as Title 42, that for the past two years has blocked many illegal immigrants from entering the U.S., sparking fears of a new record-shattering surge of migrants.
Title 42 will end on May 23, Homeland Security said.
The emergency powers had allowed the government to immediately expel many border jumpers. Without it, Homeland Security is planning for as many as 18,000 illegal immigrants a day to enter, which would triple current levels that are already at sustained historic highs.
Homeland Security Secretary Alejandro Mayorkas said his department is prepared.
“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,” he said in a statement.
Those assurances rang hollow even to some Democrats. Sen. Joe Manchin III, West Virginia Democrat, called it “a frightening decision,” given the likely surge of people.
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“We are nowhere near prepared to deal with that influx,” he said.
The decision to impose Title 42 belongs to the Centers for Disease Control and Prevention, which in March 2020 decided illegal immigrants posed an unacceptable risk of spreading the virus.
Now, the CDC says the risk is low enough to end the emergency.
Since Title 42’s inception, illegal immigrants have been expelled more than 1.7 million times — though some of those are expulsions are for the same person.
Agents regularly found migrants who tried to sneak in, got caught and expelled, then turned around and tried again in the next day or two.
The policy’s critics say it was tainted from the start by the Trump administration, which used it as an excuse for a border shutdown they’d long sought.
Immigrant-rights advocates say among the 1.7 million expulsions are some legitimate asylum-seekers who have been sent back across the border to Mexico or, in some cases, all the way to their home countries.
Human Rights First, an advocacy group, says it has documented thousands of cases of migrants pushed back into Mexico who were kidnapped, raped or suffered other violent attacks.
Now, they will have a chance to make their asylum claims.
The problem, border experts say, is that most of them don’t have valid cases, but are lodging claims to abuse the system. With current backlogs, it takes years for an asylum case to be heard by an immigration judge, and migrants are generally allowed to live — and in many cases legally work — here while waiting for their hearings.
Homeland Security last week finalized a new asylum case system that takes initial case decisions from immigration judges and turns them over to U.S. Citizenship and Immigration Services. Officials say it will mean faster decisions — and probably a higher rate of approvals.
But it will also take years to phase in, leaving the Biden administration with few good options right now for dealing with a post-Title 42 surge.
And while it’s impossible to say exactly what a post-Title 42 world would look like, analysts say comparing the Trump and Biden records gives some sense.
Under the Trump administration, during the pandemic, nearly 85% of people apprehended by the Border Patrol were expelled under Title 42. Agents averaged fewer than 48,000 apprehensions per month during that period.
Under Mr. Biden, Title 42 expulsions dropped to 56% of Border Patrol arrests, and with more people being caught and released, more people are attempting to come. Agents averaged nearly 168,000 arrests a month under Mr. Biden, or three times the flow under Mr. Trump.
Homeland Security officials this week revealed it is preparing for an even worse situation, with up to 18,000 illegal entries a day, or more than half a million per month. That works out to a movement of people about the size of the city of Atlanta coming into the U.S. each month. That would obliterate all previous records.
With those sorts of numbers on the horizon, even some Democrats on Capitol Hill have been urging the Biden administration to move slowly in lifting Title 42.
In addition to Mr. Manchin, Arizona Sens. Kyrsten Sinema and Mark Kelly, both Democrats, fired off a letter last week complaining of “the lack of a specific plan” for handling the expected surge.
They said a “comprehensive” plan needs to be in place before any big changes.
Mr. Mayorkas, in his statement, said problems with illegal immigration predate the pandemic and suggested the numbers ebb and flow.
While levels fluctuate year to year, the past 12 months have seen the most sustained illegal immigrant surge in U.S. history.
Friday’s announcement comes as the CDC is already under fire for political decision-making on other pandemic issues.
Congressional Republicans on Wednesday revealed the results of an investigation that found the health agency “bypassed scientific norms” by allowing a pro-Biden teachers union to shape the guidance the CDC issued to schools last year.
The decision to end Title 42 comes even as the Biden administration is begging Congress for tens of billions of dollars in new money to fight the pandemic, and he is warning of disastrous consequences from the virus if the money isn’t forthcoming.
Sen. Richard Burr, North Carolina Republican, called Mr. Biden’s message on COVID-19 “a contradictory mess.”
Legal experts say they expect Republican-led states to go to court to try to stop the change, which could delay implementation.
Texas Gov. Greg Abbott on Friday said his state will bear the brunt of the Title 42 decision, and he said Mr. Biden is guilty of dereliction of duty.
“President Biden clearly has no intention to secure the border by faithfully executing Congress’ command to detain and deport illegal immigrants,” the Republican governor said. “His actions will only further endanger Texans, and the State of Texas must take even more unprecedented action to keep our communities safe by using any and all constitutional powers to protect its own territory.”
Ending Title 42 raises other questions for Homeland Security, which has cited the pandemic as one reason it has had to limit detention space at U.S. Immigration and Customs Enforcement.
If Title 42 expires, it’s likely ICE will face new pressure to expand detention to full capacity, which would be an average of 34,000 beds on any given day. As of the end of February, ICE was holding fewer than 20,000 people.
ICE officers also say their hands are tied by a pandemic-era court ruling that ordered the release of some migrants with health conditions that made them vulnerable to COVID-19 who would otherwise be detained.
With Title 42 gone, the Biden administration could ask the judge to revisit that pandemic limit.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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