Title 42 still hangs in the balance

Twenty thousand immigrants are waiting in Mexico across the border from El Paso, Texas, a city that often bears the brunt of increased border crossings. The city declared a state of emergency last Saturday. Mayor Oscar Leeser said the sight of immigrants sleeping on downtown streets in freezing temperatures motivated the move.

The humanitarian crisis has escalated as the Biden administration prepares to end Title 42—the pandemic-era health order that allows immigration authorities to expel certain immigrants before they can make an asylum claim. The policy mainly affects Mexicans, Guatemalans, Hondurans, Salvadorans, and some Venezuelans, since Mexico agreed to accept expelled immigrants from these countries.

U.S. District Judge Emmet Sullivan struck down the public health order on Nov. 15, and gave the administration four weeks to prepare for the end of its primary tool for handling record crossings. Sullivan said the order ignored the rights of immigrants to ask for asylum and had no legal basis since the pandemic is over.

The policy should have ended Dec. 21, but 19 Republican states made an emergency appeal to the Supreme Court to keep the policy. The U.S. Court of Appeals for the District of Columbia ruled against the states. Arizona Attorney General Mark Brnovich told the justices that “getting rid of Title 42 will recklessly and needlessly endanger more Americans and migrants by exacerbating the catastrophe occurring at our southern border.”

Chief Justice John Roberts temporarily stayed the court order to end the policy and demanded the Biden administration respond by the end of Dec. 20. The administration told the nation’s highest court that the justices should reject the state’s bid to keep the policy, but asked for a one-week delay until after Christmas.

It is unclear when the Supreme Court will rule on the policy. In the meantime, thousands of immigrants continue to wait. The escalating crisis points to a need for asylum reform, experts say.

“We are seeing breaking news that Title 42 may not be lifted. One of the things we will do is proceed as if it is lifted. We will make sure we are prepared,” El Paso Mayor Oscar Leeser told NBC News.

City shelters are running out of room. Officials announced the city will use the El Paso Convention Center and two vacant El Paso schools to shelter immigrants. Three hotels will house more immigrants as temperatures drop.

Texas Gov. Greg Abbott directed the Texas National Guard to block illegal access points into the city. Soldiers deployed a “contingency border fence”—concertina wire stretched along the riverbank. The National Guard said more than 400 soldiers are trying to direct immigrants to official crossing points at ports of entry.

Matthew Soerens, the U.S. director of church mobilization for World Relief, visited churches and shelters in El Paso and its sister city of Juarez, Mexico. He saw desperate immigrants waiting for news of the end of the policy.

“This is, of course, a big political issue. But for us, it’s first and foremost about people and people who, as Christians, we believe are made in the image of God, and, you know, are worthy of being treated with respect and dignity,” Soerens said.

He argued that the public health rationale for the order doesn’t make a lot of sense. But he also understands the need for better solutions. “There is not sufficient capacity to process asylum requests in a timely fashion,” he said, “that’s a huge challenge, frankly, one that needs congressional attention.”

The right to seek asylum is an essential part of U.S. immigration law, “precisely because we don’t want to see anyone sent back to a country where they will be killed because of their faith or political opinion,” Soerens explained. Under Title 8, an immigrant can ask for asylum if he or she fears persecution or harm in his country of origin at official ports of entry or anywhere along the border once they reach the United States. Once Title 42 ends, border authorities will process immigrants under Title 8 and likely release most into the country on parole with a notice to appear in immigration court.

Soerens is wary of limiting asylum to ports of entry because of a United States Customs and Border Protection metering policy. The system limited how many immigrants could ask for asylum per day and instructed some asylum seekers to wait in Mexico until they could be processed.

Danilo Zak, assistant vice president of policy and advocacy for the National Immigration Forum, said that to fix the asylum process the administration must increase resources and personnel. United States Citizenship and Immigration Services doesn’t have enough asylum officers—officials responsible for adjudicating credible fear interviews, the first step in the asylum process. Nor are there enough immigration judges to handle a backlog of about 1.6 million asylum cases.

The administration should also bring more USCIS asylum officers or case management personnel to the border, Zak said. Border Patrol completes the early stages of the asylum process when they screen and process immigrants apprehended under Title 8. But this takes agents away from their patrol duties and drags out the whole process.

Earlier this year, the administration gave asylum officers the authority to make asylum decisions in some cases if an individual passes a credible fear screening. Zak hopes this will also speed up the process as the administration continues to roll out the change.

“The administration says it has been preparing to end Title 42 for well over a year. And really it should have been preparing for that since [President Joe Biden] took office,” said Zak, “So there should be some of this infrastructure in place.”

The Biden administration is preparing for 14,000 border crossings a day when and if Title 42 is lifted.

El Paso isn’t the only city that’s overwhelmed. Pastor Carlos Navarro ministers to immigrants in Brownsville—a small Texas border city east of El Paso. He pastors Iglesia Bautista West Brownsville and serves as a chaplain to immigrant children at Southwest Key immigration shelters. The city sees 1,700-1,900 crossings a day.

He’s worried about how the community will react when Title 42 ends and crossings escalate further. “When that happens, I don’t want to know. … People are already angry … because they’re seeing too many [immigrants].”

Navarro’s ministry partners across the border in Mexico are even more overwhelmed. Immigrants are putting up tents and making shelters out of boards. “Every day … they’re collecting, I mean, they’re just gathering there. …There’s no space anymore,” he said. “There’s no camps, there’s no refuges, there’s no buildings to hold them anymore.”

With additional reporting by Bonnie Pritchett