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Biden Administration Unveils Long-Awaited Plan to Repeal Title 42 and Secure Border

Migrants rest in a dormitory of the Good Samaritan shelter in Juarez, Mexico, March 29, 2022. Christian Chavez/AP
Migrants rest in a dormitory of the Good Samaritan shelter in Juarez, Mexico, March 29, 2022. Christian Chavez/AP

After weeks of criticism and a growing Democratic mutiny, the Biden administration unveiled a plan Tuesday to repeal the pandemic-era Title 42 policy and bolster U.S.-Mexico border security.

The White House Office of Legislative Affairs briefed senior congressional staff Tuesday on a 20-page memo that outlines six pillars aimed at staving off a massive surge in illegal border crossings that officials anticipate will occur once the policy is lifted.

“When the Title 42 public health Order is lifted, we anticipate migration levels will increase, as smugglers will seek to take advantage of and profit from vulnerable migrants,” the document says. “The increase in migration being experienced by the United States is consistent with larger global trends: there are currently more people in the world displaced from their homes than at any time since World War II, including in the Western Hemisphere.”

The policy, which dates back to the Trump administration, mandated that U.S. border officials immediately turn away individuals who crossed the border illegally, even if they were pursuing asylum. In early April, the Biden administration announced its intention to end the Title 42 policy, which had long been panned by left-leaning immigration activists. Then, on Monday, a federal judge temporarily barred the administration from ending the policy. Opponents of the move, which included Republicans and Democrats, slammed the Biden administration for not presenting a comprehensive plan on how to remove the policy and deal with the consequent surge in illegal immigration.

Tuesday’s memo, which came from Secretary of Homeland Security Alejandro Mayorkas, is intended to ease those concerns. The memo entails a “whole of government approach” to fulfill a six pillar plan: surging personnel and resources; bolstering immigrant processing capacity; deterring illegal migration through deportations and prosecutions; collaborating with nongovernmental organizations; cracking down on transnational criminal organizations; and working to counter migration in the Western Hemisphere.

Most of the measures detailed in the memo are broad and have already been pursued by the Biden administration to combat illegal migration at the U.S.-Mexico border. Department of Homeland Security officials told reporters in a briefing on the memo Tuesday that they have been planning for the removal of Title 42 since it was put into effect two years ago.

In the memo, the department highlights that it expanded law enforcement personnel by 600, expanded its holding capacity for migrants to 18,000, up from 13,000 at the beginning of 2021, and doubled its capacity to transport detained migrants. The Border Patrol has begun utilizing an expedited removal more frequently, particularly on “recidivist” border crossers, and worked to speed up adjudications of illegal immigration cases.

In order to help noncitizens processed by the government or released while awaiting judicial proceedings, the department is providing assistance to nongovernmental organizations groups to ease the burdens on communities. This includes emergency food and shelter programs and other coordination. DHS has collaborated with other agencies to crack down on criminal groups and made over 2,500 arrests and disruptions of illegal activity. Lastly, the Biden administration has signed new agreements with Costa Rica and Panama while continuing “close cooperation with Mexico” to try to crack down on smugglers and collaborate on migration control measures.

Absent from the plan was the Trump administration’s signature “Remain in Mexico” policy, which requires asylum-seekers at the southern border to stay in Mexico while waiting for their applications to be processed. Although separate from Title 42, Republicans had praised the policy and contended it could curb illegal immigration through the asylum process.

The Centers for Disease Control and Prevention invoked Title 42 of the Public Health Service Act of 1944 in March 2020 to tell U.S. Customs and Border Protection to expel all noncitizens crossing the border illegally back to Mexico instead of taking them into custody. Traditional immigration authority comes from Title 8 and will be the governing policy if and when the Title 42 policy is nixed. As a result, illegal immigrants taken into custody by the Border Patrol will be put into removal proceedings and not necessarily expelled immediately.

DHS officials told reporters the department will abide by the court order imposing a temporary restraining order on the administration from removing the Title 42 policy. A hearing for the case has been scheduled for May 13. Prior to the court ruling, the Biden administration planned to scrap the policy effective May 23.

Before the courts intervened, Republicans slammed the administration for moving to nix the policy, arguing it would exacerbate the current surge in illegal immigration at the southern border. Some Democrats in Congress also began voicing public objections to the move, fearing backlash could dim their already difficult 2022 midterm election prospects.

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