The U.S. will soon lose the ability to expel migrants under the Title 42 public health order -- an order that has become a central part of the response to the ongoing border crisis -- after a court ruled this week that its use is unlawful, but Department of Homeland Security Secretary Alejandro Mayorkas says that there is a plan to deal with the consequences.
A U.S. District Court judge ruled this week that the government can no longer apply Title 42, a Centers for Disease Control and Prevention (CDC) order that allows for the rapid removal of migrants at the border due to the COVID-19 pandemic. The policy has been used since March 2020 to quickly expel a majority of migrants at the southern border instead of processing them into the U.S.
The judge said the policy, implemented during the Trump administration and continued to an extent by the Biden administration, was in violation of the Administrative Procedures Act. The Biden administration asked the judge for a delay of five weeks to prepare, which was granted on Thursday.
Critics had argued that the policy stops migrants from claiming asylum under the pretext of the pandemic. The Biden administration had claimed that the policy contributed to the crisis by encouraging repeat crossings and had sought to end Title 42 earlier in the year. However, it faced significant opposition, including from Democrats, and was blocked from doing so by a federal judge. It has since expanded Title 42 to include Venezuelan nationals in order to combat a sudden spike in arrivals in recent months.
FEDERAL COURT DELAYS END OF TITLE 42 BORDER POLICY UNTIL DECEMBER AMID FEARS OF MIGRANT SURGE
The judge’s scrapping of Title 42 this week has led to renewed fears that the already high border numbers will only get even higher once the primary method of expulsion of illegal immigrants is ended on Dec. 21. However, DHS has repeatedly claimed that it has a plan to address the eventual end of Title 42.
Mayorkas was quizzed on the matter by Sen. James Lankford, R-Okla., on Wednesday.
"We're still waiting to try to figure out what happens now and how many are about to cross the border. What's the plan for dealing with this massive migration, illegal immigration coming now post-Title 42?" he asked the secretary at a Senate Homeland Security Committee hearing.
Mayorkas suggested that DHS has it under control, saying that the agency had requested (and been granted) an "orderly wind-down" period for the policy and that the plan is the same as the one the administration announced in April when it was then seeking the end of the public health order.
"What we are doing is precisely what we announced we would do in April of this year, and we have indeed been executing on the plan," he said.
That plan, he said, includes surging personnel, technology and other resources to the border and increasing processing efficiency "to mitigate potential overcrowding." Additionally, Mayorkas says the administration will focus on increasing consequences for illegal entry. Currently, under Title 42, most migrants who are removed are expelled without any prosecution or punishment.
"We are enhancing the consequences for unlawful entry, especially with respect to individuals who seek to evade law enforcement, including removal, detention and criminal prosecution when warranted," he said.
That’s in addition to DHS efforts to bolster the capacity of non-profits as well as continuing to target smuggling organizations and working with Western Hemisphere countries to discourage illegal migration throughout the region.
Mayorkas went on to claim that it is not just the U.S. that is seeing a crisis at its borders.
"The entire hemisphere is suffering a migration crisis. We are seeing an unprecedented movement of people from country to country. It is not restricted to the southern border," he said.
DHS has said that it commenced planning exercises last year to put the plan to end Title 42 in place, using what the agency has called a "whole of government approach" to manage anticipated increases in encounters at the border.
JUDGE BLOCKS US FROM USING TITLE 42 TO EXPEL MIGRANTS
The agency has previously stressed that, until then, Title 42 will remain in place.
"While the stay is in effect, DHS will continue to process individuals in accordance with the CDC’s Title 42 public health order and expel single adults and family units encountered at the Southwest Border," the agency said.
"People should not listen to the lies by smugglers who will take advantage of vulnerable migrants, putting lives at risk. The border is closed, and we will continue to fully enforce our immigration laws at the border."
Meanwhile, Mayorkas is one of a number of Biden officials who have repeatedly declared that the border is "secure," despite 2.3 million migrant encounters in FY 2022 and more than 1.7 million in FY 2021. Meanwhile, sources have told Fox News that there were nearly 600,000 "gotaways" last fiscal year.
Border Patrol sources have told Fox News that they expect a new flood of migrants once word reaches south of the border that Title 42 has ended. The National Border Patrol Council has predicted a "s--- show" when the order ends.
