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End of Title 42 Looming, US Immigration Agency Releases Detailed Assessment

FILE - Venezuelan migrants, some expelled from the U.S. to Mexico under Title 42, queue outside of the National Migration Institute to process a permit to stay in Mexico for 180 days, in Ciudad Juarez, Mexico, Oct. 24, 2022.
FILE - Venezuelan migrants, some expelled from the U.S. to Mexico under Title 42, queue outside of the National Migration Institute to process a permit to stay in Mexico for 180 days, in Ciudad Juarez, Mexico, Oct. 24, 2022.

With the imminent sidelining of Title 42 — a pandemic-era restriction that blocked migrants from seeking asylum in the U.S. — the Department of Homeland Security (DHS) recently outlined steps it will take at the U.S.-Mexico border if the order is lifted.

A federal judge in Washington ordered enforcement of Title 42 to end on December 21. Republican-led states filed an appeal asking the court to keep it in place. The Biden administration also has challenged parts of the ruling ending the Trump-era asylum restrictions.

In a detailed assessment ahead of the guideline shift, the DHS said the agency is already executing plans to manage an increased flow of migrants at the U.S.-Mexico border, including the use of expedited removal under the Title 8 authority.

“Among other things, Title 8 provides that individuals who cross the border without legal authorization are processed for removal and, if unable to establish a legal basis to remain in the United States, promptly removed from the country,” according to DHS.

While both parties wait for the judge's decision, migrant advocates in Reynosa, Mexico, told VOA that about 750 migrants a day have arrived in the last few days.

Hector Silva, a pastor in the area who also operates one of the largest migrant shelters south of the border, Senda de Vida, or "Path of Life,” told VOA that advocates and volunteers have been helping about 14,000 families in the last few weeks.

“We have seen in past years that people get encouraged to come and then they do not know where to go," Silva said in Spanish. "And what is happening right now from Tijuana to Matamoros is that people are waiting, and they have been waiting for months. [Some] have been waiting for years. And we tell them one thing: do not risk yourselves. Do not come without knowing what you will face at the border.”

According to U.S. Customs and Border Protection (CBP) in the Rio Grande Valley sector, about 1,800 migrants turned themselves in to authorities during a 48-hour period after crossing from Ciudad Juarez, Mexico, to El Paso, Texas, indicating that a considerable number of people who were already in Ciudad Juarez joined the new arrivals to cross the border together.

Marco Antonio Diaz, from Honduras, is one of those people. Sitting on a dirt road along with his pregnant wife and small child, Diaz told VOA that lifting the health order gives them hope and courage.

“The truth is that it makes us happy because we want to cross to the other side to work," he said.

Díaz, his family, along with elderly people, people with disabilities, and other children, have slept in tents, and because of heavy rains in the region in the past few days, have endured low temperatures.

"It has rained a lot," he said "There was a night that it rained so much that we got very wet and very cold.”

The seven-page preparedness update released by the DHS this week takes note of the agency’s successes, which include faster processing for migrants in custody at the southern border, an increase in staff, more criminal prosecutions of smugglers, and more temporary detention tents.

However, the update does not mention any major changes in how the agency will deal with large numbers of migrants entering the country to ask for asylum.

Since March 2020, U.S. border authorities have used Title 42 to deny entry to millions of would-be asylum seekers on the basis that allowing them in could increase the spread of COVID-19.

Per CBP data, Title 42 has been used in most of the estimated 2.38 million encounters with migrants in fiscal year 2022.

The data indicate that 1,079,507 were expelled and 1,299,437 were processed under Title 8 authority.

Not every encounter is a unique apprehension, as some migrants have tried to cross multiple times.

In various reports, U.S. border officials and immigration advocates say border numbers reflect economic deterioration and political conditions in some countries driving people to make their way to the southern U.S. border.

In fiscal year 2023, which began October 1, U.S. border officials registered 230,678 migrant encounters. Of those, 78,477 were expelled. The rest were either detained, allowed to seek asylum, paroled, or swiftly deported under expedited removal.

Efforts to end Title 42

The Biden administration first attempted to end Title 42 in May, but efforts were stopped when Republican-led states sued and a federal court in Louisiana preliminarily agreed with the states.

The U.S. Department of Justice then filed an appeal and argued the Biden administration’s decision to lift the regulation was legal.

The Louisiana federal judge said in his ruling that not only had the Biden administration violated administrative procedure laws, but also that ending Title 42 would cause “irreparable harm” since the Republican-led states were expected to spend resources on law enforcement, education, and other services to assist newly arrived migrants.

Still, federal law allows people from other countries to seek asylum in the United States if they fear persecution at home based on race, religion, nationality, membership in a particular social group, or political opinion.

In a statement after the ruling, the DHS said Title 42 is not an immigration control tool but a public health order, but that it “will comply with the court’s order to continue enforcing the Centers for Disease Control and Prevention’s Title 42 Order as long as it remains in place.”

At the time, Luis Miranda, a CBP spokesperson, told VOA that officials were preparing to "simply go back to processing any encounters across the border the way we always have under Title 8, which is the immigration authority that has always been in place throughout the history of U.S. Customs and Border Protection."

Miranda said the U.S. government was expecting arrivals to increase at the southern border but added that those unable to establish a legal basis to remain in the United States will be removed.

"We've been planning for that. … And to process any encounters effectively, and humanely. But ultimately, if someone is trying to come in without legal authorization and doesn't have the legal basis to stay, they will be placed in removal proceedings," he said.

VOA contacted CBP officials for an update, but as of Thursday morning had not received a reply.