A Louisiana judge is preventing Biden from ending the policy as planned.
The Biden administration was days away from ending Title 42, a policy implemented under then-President Donald Trump that has allowed the US to expel hundreds of thousands of migrants at the southern border under the guise of curbing the spread of Covid-19, when a Louisiana federal judge temporarily put a halt to those efforts.
District Judge Robert Summerhays ruled on Friday that the policy must remain in place for now, writing that the administration didn’t follow the correct administrative procedures in ending the policy. It also failed to consider the surge in migration that would result from lifting the policy and the costs border states would incur by supporting social services for additional migrants, he wrote.
The decision will set the Biden administration back by months in its efforts to end Title 42. And it maintains a status quo on the border that has shut migrants out of the US asylum system since March 2020.
Title 42 was put in place under dubious public health rationale and has become an overt, de facto national immigration and border security strategy due to its effectiveness at keeping migrants out of the US. As Summerhays noted, Title 42’s rollback was expected to prompt an increase in migration to the border that would challenge US immigration and border enforcement capabilities. Republicans were ready to pounce on the anticipated border surge, and some Democrats — including ones in tight reelection races in this fall’s midterms — had even urged President Joe Biden to leave Title 42 in place of his own accord.
The White House had resisted such calls, proceeding with its plans to end the policy on May 23. But now that the court is standing in its way, the question is how forcefully the Biden administration will resist its decision.
Here’s what you need to know about the policy and the political fight over ending it.
Title 42, explained
Title 42 is a previously little-known section of US health law that allows the US government to temporarily block noncitizens from entering the US “when doing so is required in the interest of public health.”
When the Trump administration invoked Title 42 in March 2020 at the outset of the pandemic, White House officials argued that it had been recommended by public health officials to prevent the spread of Covid-19 among migrants in crowded Border Patrol stations.
But public health officials weren’t the ones pushing the policy; the effort was led by Stephen Miller, a former senior adviser to Trump and the chief architect of his immigration policy, which focused on reducing overall immigration levels to the US, at times by deliberately cruel means. Even before the pandemic, Miller had been looking for opportunities to use Title 42 to expel migrants, including when there was a mumps outbreak in immigration detention and flu spread in Border Patrol stations in 2019.
The policy has effectively shut out migrants arriving at the southern border from legal pathways to enter the US (there are limited exceptions for some families, unaccompanied children, and Ukrainians). Before Title 42, the migrants would have been processed at Border Patrol facilities and evaluated for eligibility for asylum and other humanitarian protections that would allow them to remain in the US. Migrants have a legal right, enshrined in US and international law, to seek asylum. But under Title 42, migrants are returned to Mexico within a matter of hours and without any such opportunity.
The US has used Title 42 to expel migrants more than 1.9 million times since March 2020. Many have been caught trying to cross the border multiple times because the policy removed any potential adverse legal consequences of doing so.
Title 42 was controversial when Trump implemented it: It was clear that the primary purpose of the policy was not to protect public health, but to advance Trump’s political goal of cracking down on unauthorized immigration at great human cost.
The Biden administration has had plenty of opportunities to roll back Title 42, starting when Biden made a flurry of executive actions in January 2021 to roll back other Trump-era immigration policies. But because the administration waited more than a year to take action, it has had to defend the policy as a necessary public health tool. In that time the current reality on the border, where most migrants are being turned away under Title 42, has become the new normal.
The Centers for Disease Control and Prevention found last month that Title 42 was no longer necessary to protect public health from the spread of Covid-19. Many public health experts outside the agency argued all along that it was never necessary for public health because community transmission inside the US, not introduction of the virus from Mexico, is what has driven the spread of Covid-19 in the country. They say that the US always had the capacity to safely process migrants by means of testing, quarantining, and enforcing masking.
But the Trump administration maintained that Title 42 was a means of mitigating “serious danger to migrants, our front-line agents and officers, and the American people,” as then-acting Homeland Security Secretary Chad Wolf said at a White House event announcing the policy.
Not only was Title 42 questionable from a public health standpoint, it didn’t deter migration. Before Title 42, migrants might have been subject to swift deportation proceedings, known as “expedited removal,” and criminal prosecution, which would have made it more difficult for them to get legal status in the US down the line. But now they’re simply returned to Mexico and undeterred from trying to cross again.
That’s reflected in the data: There were nearly twice as many border apprehensions in fiscal year 2021 as in fiscal year 2019. Before the pandemic, only 7 percent of people arrested at the border had crossed the border more than once; in fiscal year 2022, it’s 27 percent, and among single adult migrants from El Salvador, Guatemala, and Honduras specifically, it’s 49 percent.
What Title 42 has meant for migrants
Title 42, coupled with other Trump policies designed to keep out migrants, has impacted the lives of hundreds of thousands of migrants who are effectively trapped in Mexico, many living in shelters or camps along the border and relegated to informal work if they can find work at all. Many of them had nowhere else to go: Gang violence, climate-related challenges, and economic instability due to the pandemic are common factors in their decisions to flee their home countries.
Though Title 42 is still the US’s primary means of turning back migrants to Mexico, migrants have also been returned under the Trump administration policy colloquially known as “Remain in Mexico.” The Trump administration used this policy to send 70,000 asylum seekers to Mexico while they awaited their immigration court hearings in the US.
Biden tried to roll back Remain in Mexico last year, but a Trump-appointed judge ordered the administration to reinstate the program in December. The administration appealed that ruling to the US Supreme Court, which heard arguments in the case in April and will determine whether the rollback of Remain in Mexico can proceed. In the meantime, another 3,012 migrants — most from Cuba, Nicaragua, and Venezuela — have since been enrolled in the program under Biden as of April 2022.
Mexico is woefully ill-equipped to administer to the needs of thousands of migrants who have been waiting in border towns for a chance to enter the US. When migrant shelters are full, some have been forced into camps in cities such as Tapachula and Reynosa along Mexico’s southern and northern borders, where they rely on NGOs to provide basic supplies and services, including medical care. During the pandemic, social distancing in these environments has been difficult if not impossible, and access to testing and vaccines has been sparse.
What’s more, Title 42 and Remain in Mexico have endangered migrants by sending them back to Mexico. The refugee advocacy group Human Rights First documented 8,705 reports of kidnappings and other violent attacks against migrants sent back to Mexico by the US. Haitians and other Black migrants have been at particular risk because of the discrimination they face in Mexico.
What were the Biden administration’s plans to lift Title 42?
Lifting Title 42 would be a seismic change in US policy for migrants who have been stranded in northern Mexico, in many cases for years. As part of the administration’s now moot plans to end the policy on May 23, families and single adults who are caught trying to cross the border would have been processed and placed in deportation proceedings.
They might have been detained while fighting their deportation cases, a process that could take months or even years, or released while being monitored. If they couldn’t prove that they have a legal basis to stay in the US (such as asylum or other humanitarian protections), then they would have been deported, which would have also made it harder for them to legally immigrate in the future.
The policy change would have also brought challenges for Biden administration officials, who would have faced the enormous task of safely and humanely processing what would have likely been a sharp increase in the number of migrants arriving on the southern border in the coming months. DHS and State Department officials told reporters last month that they were concerned that smugglers will contribute to that anticipated spike, misrepresenting the policy change to migrants, and overstating their chances of getting legal status in the US.
The administration had been preparing for a worst-case scenario of as many as 18,000 migrants arriving daily after Title 42 was lifted, up from an average of about 5,900 in February. That involved deploying additional resources to the border to deal with it, including hundreds of personnel, transportation, medical resources, and new soft-sided processing facilities.
“We are confident that we can implement our plans when they are needed. … [W]e are planning for different scenarios,” DHS Secretary Alejandro Mayorkas told CBS in April. But he also admitted that “certain of those scenarios present significant challenges for us.”
In April, Mayorkas issued a 20-page memo formalizing those plans, which included surging even more resources to the border, increasing processing efficiency, enforcing legal consequences against migrants who try to cross the border without authorization, bolstering NGO capacity, targeting transnational criminal organizations, and trying to deter migrants from making the journey to the southern border in the first place.
Border Patrol leaders had voiced concern about getting adequate support from the Biden administration and what that could mean for morale. But if they had the support, they thought they could implement the new system.
“It’s going to take us a little bit to ramp up. But we’re gonna get there,” Border Patrol El Paso Sector Chief Gloria Chavez told the El Paso Times.
The Biden administration is also in the process of revamping the way that migrants will apply for asylum. Rather than wait in years-long backlogs for a hearing before an immigration judge, they would be referred to an asylum officer and released while US Citizenship and Immigration Services processes their application. The aim was for the application process to take no more than a few months, but the Biden administration acknowledged that USCIS doesn’t currently have the necessary staffing levels to make that happen. That would require another 800 employees and an additional $180 million in funding.
How ending Title 42 became a fight among Democrats
Republicans have been gearing up for a fight over the policy even before the Biden administration announced that it would end Title 42. They have decried what they predict will be “unmitigated chaos and catastrophe” at the border once the policy is lifted, advancing their planned line of attack on Biden’s immigration policies ahead of the midterms.
Democrats, especially those facing tough 2022 contests, have little interest in taking responsibility for a perceived border crisis by ending Title 42. Democratic Senate candidates, including John Fetterman in Pennsylvania and Mandela Barnes in Wisconsin, have consequently urged the administration to reevaluate whether it should end. Five Democratic senators — Kyrsten Sinema and Mark Kelly of Arizona, Joe Manchin of West Virginia, Raphael Warnock of Georgia, and Maggie Hassan of New Hampshire — even joined Republicans in introducing a bill that would preserve the policy until 60 days after the surgeon general announces the end of the public health emergency related to Covid-19.
“Unless we have a well-thought-out plan, I think it is something that should be revisited and perhaps delayed,” Sen. Gary Peters of Michigan, chair of the Democratic Senatorial Campaign Committee, told reporters last month. “I’m going to defer judgment on that until I give the administration the opportunity to fully articulate what that plan is. But I share … concerns of some of my colleagues.”
Moderate Democrats’ reaction to the Biden administration’s decision to end Title 42 was swift — but for many of them, it’s the first time they have voiced any opinion about the policy at all. Progressives, on the other hand, have been calling on Biden to end Title 42 since shortly after he took office. As early as February 2021, 60 Democratic members of Congress wrote to the administration demanding that it “safely and effectively end all expulsions under title 42 … as soon as practicable and ensure that migrants can access our nation’s asylum system.”
Members of the Congressional Hispanic Caucus reiterated that message during a meeting with the White House in late April: “Title 42 should be lifted, and we should focus on border management policy in order to make sure that they have the resources in order to move forward,” caucus chair Rep. Raul Ruiz (D-CA) told reporters following the meeting.
What are the political implications of lifting Title 42?
There are huge political upsides for Republicans trying to spin the end of Title 42 as the start of a border surge — and not so much for Democrats making the argument that the policy should be rescinded.
According to an April 6 Morning Consult/Politico poll, 55 percent of voters somewhat or strongly oppose the decision to end the policy, including 88 percent of Republicans and 27 percent of Democrats. That represents the biggest backlash to any Biden administration policy among dozens tracked by Morning Consult since January 2021. But there is a big partisan divide in perception of the policy, and Republicans rank immigration overall as a much higher-priority issue than Democrats.
Democratic convulsions over Title 42 show that the party’s consensus on immigration policy is tenuous at best.
The party wasn’t always as pro-immigration as it purports to be today. As recently as 2006, 64 House Democrats and 26 in the Senate voted for the Secure Fence Act, which built some 700 miles of fence — basically, a wall by another name — along the 2,000-mile southern border. For votes included then-Sens. Joe Biden, Hillary Clinton, Barack Obama, and Senate Minority Leader Chuck Schumer.
The Democratic Party’s identity as the party of immigrants is a relatively new development, and now the party seems to be reverting to old patterns. But in failing to present a united front and make the case for why Title 42 should end, Democrats are handing a political win to Republicans.
“It is important for Democrats to articulate to the American public where they stand, which is for a well-managed border and a fair, orderly system,” Tyler Moran, a senior adviser for migration to Biden who stepped down from her post at the end of January, told me last month. “If Democrats don’t say anything, it puts them at a disadvantage because Republicans are able to fill the void.”
What happens next?
The court battle isn’t over, and how the administration handles this next phase will reveal its true commitment to ending the policy and making good on its promises to build a more humane immigration system.
The Biden administration could immediately appeal the decision so that the rollback could proceed. It could also start the administrative process of formally notifying the public of its decision to end Title 42 and asking for feedback — a step that the Louisiana judge said couldn’t be skipped.
But that assumes that the White House is willing to spend further political capital on the issue. The Louisiana court has handed the Biden administration a potential easy out from what was already shaping up to be a costly controversy over border policy in an election year. The White House has stood by its decision to end the policy for the last month in an attempt to placate immigration activists and progressives, even over the protests of moderate Democrats. Now, the administration can argue that the court has effectively tied its hands.
Update, May 20, 7 pm ET: This story has been updated with new information about the latest Louisiana court ruling.
Update, April 29, 1:50 pm ET: This story has been updated to include the Louisiana ruling.
Update, April 27, 4 pm ET: This story has been updated with new information about Alejandro Mayorkas’s testimony to Congress.
Author: Nicole Narea