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Federal judge extends block on Biden administration's plans to lift Title 42 border restrictions

Andrea Castillo, Los Angeles Times on

Published in News & Features

Last month, federal agents stopped migrants more than 234,088 times — surpassing a 22-year high of 221,303 in March — a figure driven partially by the arrivals of Ukrainians fleeing war. But the total doesn’t reflect the actual number of people encountered because quick expulsions under Title 42 lack the same consequences as proper deportations, including civil penalties and criminal prosecution, and enable many single adults to make repeated attempts to get into the country undetected.

Nearly 21,000 Ukrainians have requested to enter the U.S. at ports of entry along the Mexico border, the vast majority near San Diego, according to the Transactional Records Access Clearinghouse, a nonpartisan research center at Syracuse University. Ninety-five percent of Ukrainians were allowed to enter, compared with just 11% of people from other countries.

Nearly half of the migrants stopped by border agents are from countries outside of Mexico and Central America’s Northern Triangle, with increases in migration seen most recently among Brazilians, Cubans and Haitians. Trends have shifted away from mostly families to mostly single adults, Customs and Border Protection data show.

Federal officials rely on Mexico and other countries to receive migrants subject to Title 42, which has led to people from Mexico, Guatemala, Honduras and El Salvador most frequently being expelled. Exemptions are made for humanitarian reasons and when Mexico or another country won’t take those whom the U.S. wants to remove. The policy has kept out about 60% of migrants who have sought entry since it started, according to CBP data.

Whenever Title 42 is lifted, the U.S. will lean more heavily on Mexico and other countries in the region to stop migrants from around the globe who reach Latin America from continuing north. Homeland Security Department officials visited Panama and Costa Rica in recent weeks to discuss their shared challenge.

The CDC announced April 1 that it would end Title 42 by May 23, drawing the ire of Republicans and some Democrats who said the administration was unprepared for an increase in migrants arriving at the border.

When border officials said last month that they had started processing more migrants under regular immigration law, Summerhays ordered a stop to the wind-down. In a ruling last month, Summerhays wrote that relaxing Title 42 restrictions prematurely would inflict “unrecoverable costs on healthcare, law enforcement, detention, education, and other services” on the states that brought the litigation.

In plans for lifting Title 42, Biden administration officials have prepared for as many as 18,000 migrants attempting to cross the border each day. That’s compared to an average of just under 5,400 per day between May 10 and 16, according to CBP figures provided as part of the Louisiana lawsuit.

The Homeland Security Department released a plan that includes moving 600 more agents to the border, adding 5,000 beds to border processing facilities and vaccinating migrants against COVID-19. In a statement Friday night, Homeland Security said it would comply with the order.


Homeland Security Secretary Alejandro N. Mayorkas told reporters this week during a trip to Texas’ Rio Grande Valley that he expects border crossings to increase just after Title 42 is lifted. But he said those crossings would eventually plateau and decline.

Whenever Title 42 is lifted, Mayorkas said Tuesday, immigration consequences will resume. People who enter the U.S. and are placed in formal enforcement proceedings can make claims to stay, but if they don’t qualify “they are removed, and they have an enforcement record on the books.”

That hasn’t reassured lawmakers who believe more prep work is needed.

Republicans last month blocked a COVID-19 relief bill from moving forward without a vote on Title 42. But a growing number of Democrats have signaled they are willing to vote on an amendment to keep the border policy in place. That no longer appears necessary.

Aaron Reichlin-Melnick, senior policy counsel at the American Immigration Council, predicted that Title 42 is likely to stay in place until at least next year. Summerhays’ decision signals that while the Biden administration can establish a policy under emergency conditions, terminating it requires a rulemaking comment period that could take six months to a year.

Louisiana and the other states are not arguing that the policy can never end, Reichlin-Melnick said, but they’re imposing judicial roadblocks to delay it. The CDC is likely to try to end the policy again while satisfying the judge’s demands, he said.

In the meantime, he said, “We’re going to see an ever higher number of repeat crossings. Look at the border and tell me Title 42 works.”

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