Four more weeks of Title 42

In less than four weeks, the Biden administration is set to lose its primary tool for handling record crossings at the southern border. On Nov. 15, U.S. District Judge Emmet Sullivan nullified the public health law known as Title 42 that allows immigration authorities to expel illegal immigrants before they can make an asylum claim. President Donald Trump invoked the policy at the start of the COVID-19 pandemic. The order’s tumultuous journey through the courts is scheduled to end officially at midnight on Dec. 21.

The Biden administration has relied on the policy to respond to a surge of over 2.4 million immigrant encounters during the fiscal year that ended Sept. 30. Fearing an even more significant influx, administration lawyers requested five weeks after Sullivan’s ruling to prepare to fill the gap. Sullivan stayed the court’s order with “great reluctance.”

“Title 42 will remain in place during the period of the stay, allowing the government to prepare for a transition and to continue to manage the border in a safe, orderly, and humane way,” the Department of Homeland Security said in a statement.

But Republicans argue the administration has no plan to address the escalating crisis. “What is happening now at the border and has happened the last two years under the Biden administration has been nothing short of a humanitarian and public safety crisis,” Sen. John Cornyn, R-Texas, said on the Senate floor two days later. “If you think things are bad now, they are going to get worse.”

With no panacea policy on the horizon, immigration experts anticipate the administration will continue more of the same by releasing immigrants not expelled under Title 42 into the United States on parole to await their court hearings.

In his Nov. 15 ruling, Sullivan found Title 42 “arbitrary and capricious” and argued it violated the Administrative Procedure Act that governs federal regulations. In activating the World War II–era order, Sullivan said, the Centers for Disease Control and Prevention did not consider alternatives that could protect the United States from COVID-19 without expelling immigrants into dangerous countries and ignoring their right to ask for asylum under immigration law.

The policy weathered legal challenges earlier this year. President Joe Biden campaigned on promises to end the controversial health order. In April, the CDC deemed the order unnecessary because of lower COVID-19 transmission rates and the availability of masks and vaccines. But a federal judge in Louisiana blocked the agency’s attempt to lift the order. Twenty-four states sued, arguing the decision to halt the policy violated administrative procedure law and financially harmed the states responsible for absorbing hundreds of thousands of immigrants. The administration continued to use the policy, most recently expanding the order to Venezuelans who do not apply for a limited parole program.

On Tuesday, 15 states filed a motion to delay Sullivan’s order. The states argue a likely immigration surge will impose financial burdens on border states and others who take in the immigrants.

But Sullivan’s decision leaves little room for challenges. The ruling decided a lawsuit brought by immigrant families and the American Civil Liberties Union. Rather than take issue with how the administration renewed or ended the policy, Sullivan questioned the legal basis for its use and invalidated the order altogether.

Immigration authorities used Title 42 to expel immigrants at the U.S.-Mexico border without processing them under immigration law over 1 million times, accounting for about 48 percent of all immigrant encounters. In 2021, the administration used the order in about 68 percent of encounters.

What happens to immigration numbers when the policy goes away? “It’s hard to predict, but I think we are looking at a big surge. Whether the surge will mean a million cases a year, we don’t know. But it could be north of a million cases a year,” said Muzaffar Chishti, a senior fellow with the Migration Policy Institute.

When Title 42 comes down, immigrant authorities will process illegal immigrants under Title 8 of the U.S. code. Last fiscal year, officials used Title 8 to process more than half of illegal immigrants. Overwhelmed by large numbers of arrivals, Border Patrol increased the use of parole and alternatives to detention to cut down on processing time. This means that U.S. Immigration and Customs Enforcement releases the majority of illegal immigrants into the United States to stay until their immigration case is decided. ICE monitors the immigrants through a self-reporting app on a smartphone.

“Five weeks isn’t a lot of time,” said Theresa Cardinal Brown, managing director for immigration and crossborder policy at the Bipartisan Policy Center. She said the administration would most likely follow a strategy outlined in an earlier memo. The memo focused on alleviating pressure on Border Patrol stations by processing immigrants as quickly as possible, surging personnel and resources, and supporting the local communities receiving the immigrants from ICE.

The memo also discussed expanding expedited removal, which allows immigration authorities to send immigrants to their original countries without going through immigration court. But Cardinal Brown said that officials couldn’t significantly expand the process without solving multiple logistical challenges. If an immigrant is processed for expedited removal but can’t be removed immediately, ICE places the individual in detention. Detention facilities don’t have any excess capacity, and officials don’t have the time to go through the hour-and-a-half process to get an immigrant on the expedited removal track. Processing an immigrant for parole and an alternative to detention only takes 30 minutes.

Title 8 requires immigration authorities to send immigrants to their country of origin for all but a few exceptions. That is impossible for countries like Nicaragua and Venezuela because of frosty diplomatic relations. On top of that, to send back immigrants under expedited removal, Mexico must agree to take them in.

“There are physical infrastructure limitations that are at play here, given the volume of people we are seeing at the border,” said Cardinal Brown, so the administration will most likely lean on parole in the short run.

Even if an immigrant is placed in expedited removal, the process stops if an immigrant subjected to the expedited removal process expresses fear of persecution or torture in their original country and asks for asylum. Then, an asylum officer must interview the immigrant to determine whether to advance their case to an immigration judge. Expanding expedited removal requires more asylum officers to conduct these interviews and space to detain immigrants while they wait. Chishti said about 80 percent of immigrants pass the credible fear test, sending most of the cases to overburdened immigration courts.

In March, the Biden administration issued a new rule to allow asylum officers, not just judges, to decide asylum cases. Still, so far, officials have only used the fast-tracked process on immigrants in detention. Most immigrants released into the United States on parole wait in a preliminary line to get in another line for an immigration judge to consider their asylum claim. It often takes three to five years. Even if the administration hired more asylum officers to hear cases, the immigrant could appeal the case to a judge if the officer rejects their claim, adding to a backlog of 1.9 million immigration cases.

To handle the influx and move immigrants quickly through the parole pipeline in the short term, Cardinal Brown anticipates a redeployment of resources: more temporary tent processing facilities and another surge of volunteers from other DHS agencies.

The long-term plan is less clear. “I do think we need to take a step back and look at how broken every part of the immigration system is,” Cardinal Brown told me in an earlier interview. Logjams in the legal immigration system encourage illegal immigrants to risk the journey because they know they may wait several years before a court hears their case. “There is no hope that without drastic action, the backlogs in immigration courts are going to be fixed anytime soon,” she said.