Public health or politics? Biden's extension of Title 42 to expel migrants questioned

WASHINGTON (SBG) — Faced with an ongoing surge of migration and a spiraling pandemic, the Biden administration extended a controversial policy that relies on public health authority to quickly expel single adults and some families detained at the southern border, as frustration grows on both the left and the right.

The Centers for Disease Control and Prevention announced Monday it would continue to prohibit the entry of migrants through Mexico or Canada under Title 42 due to “a serious danger of the introduction of COVID-19 into the United States.” Unaccompanied children are exempted from the order, and the CDC will review the health risks every 60 days to determine if it is still necessary.

“Title 42 is not an immigration authority, but a public health authority, and its continued use is dictated by CDC and governed by the CDC's analysis of public health factors,” the Department of Homeland Security said in a statement. “Under Title 42, DHS continues to expel the majority of single adults, and, to the extent possible, families encountered at the Southwest Border.”

Officials had indicated they planned to wind down the use of Title 42, but border apprehension remained at a 20-year high last month and the rapid spread of the delta variant of COVID-19 has revived concerns about the risk of transmission. Texas, where most migrants attempt to cross, is grappling with one of the worst surges of infections in the nation.

“The president views it as a public health measure where the CDC is going to continue to provide guidance on how long it needs to be in place,” White House press secretary Jen Psaki said Monday, declining to offer a timeline for when the order might be lifted.

With apprehensions at the border steadily increasing since January, immigration policy has become a persistent political liability for President Joe Biden. An Ipsos/ABC News poll released last week found only 37% of Americans approve of Biden’s handling of immigration and the situation at the border, and Vice President Kamala Harris’ popularity has slipped since Biden put her in charge of addressing root causes of migration.

“Immigration has always been a perpetual wedge issue between the right and the left, and there’s really no politically winning solution here,” said Brad Jones, a political scientist and faculty affiliate at the University of California, Davis Global Migration Center.

The CDC’s announcement drew swift condemnation from progressives and immigrant advocacy groups, some of whom had previously sued the federal government over the use of Title 42. The American Civil Liberties Union filed a motion to resume litigation Monday, saying negotiations to resolve the dispute had “reached an impasse.”

“We gave the Biden administration more than enough time to fix any problems left behind by the Trump administration, but it has left us no choice but to return to court,” said Lee Gelernt, the lead ACLU attorney in the case. “Families’ lives are at stake.”

DHS maintained in a court filing in response to the ACLU that Title 42 is a “critical” tool for keeping border facilities from becoming more overcrowded and unsafe. Positive tests have been rising among migrants and border officers, and taking more adults and families into custody would make it even harder to comply with mitigation protocols.

“An injunction restricting implementation of the current CDC Order as to families will result in an immediate increased risk of harm from COVID-19 for noncitizens in DHS custody, DHS personnel, and potentially the public,” wrote David Shahoulian, assistant secretary for border and immigration policy.

The March 2020 CDC directive to turn away migrants under Title 42 is one of the few restrictive immigration policies instituted by former President Donald Trump that Biden has retained as he attempts to fulfill a campaign promise to build a more compassionate system. Unlike Trump, Biden has not sought to apply the order to children traveling alone, and Mexico has refused to accept some families since its laws changed last fall.

“It’s beyond cruel to use an obscure public health rule to turn away families seeking safety without due process and functionally shut down our asylum system — it’s illegal,” said Karla Marisol Vargas, a senior attorney with the Texas Civil Rights Project.

Republicans have cast responsibility for the spike in border encounters on Biden’s rapid reversal of most of Trump’s policies, and the White House’s efforts to deter Central Americans from making the trek north have had little impact. Experts say the trends are driven by a combination of factors in migrants’ home countries, including economic struggles, crime, and political corruption.

“#BidenBorderCrisis has turned into complete chaos, breaking records and defying norms. More and more migrants are making the dangerous journey to the border because of the Biden Administration’s failed policy decisions,” House Homeland Security Committee Republicans tweeted in response to Shahoulian’s statement.

The Associated Press reported Monday the number of unaccompanied children detained at the border likely hit an all-time high last month, and family encounters are also rising. Official figures will be released in mid-August, but total border apprehensions are believed to have topped 200,000 in July for the first time since early 2000.

“It looks like the July numbers are exorbitant...,” said Tony Payan, director of the Center for the United States and Mexico at Rice University’s Baker Institute for Public Policy. “Many more than expected.”

The numbers are not directly comparable because many of the adults detained recently were repeat crossers who had been previously expelled under Title 42, and a much greater share of those attempting to cross are apprehended now than two decades ago in general. Factoring in recidivism, the American Immigration Council estimates unique encounters are still below levels seen during the last spike in apprehensions in 2019.

Still, the administration recognizes the numbers are inordinately high, and it sent more immigration officers to the border over the weekend to assist with the processing of migrants and increased the capacity of temporary shelters to hold families. According to NBC News, the goal is to quickly release families with ankle monitors and court dates or put them on flights for expedited deportation, after thousands were let go into the U.S. without court dates in recent months.

“All of this takes a lot of effort and it costs a lot of money, and nobody really wants to spend that money,” said Josiah Heyman, director of the Center for Inter-American and Border Studies at the University of Texas at El Paso.

The Biden administration has faced growing scrutiny over testing protocols and reports of migrants being released into the U.S. who have either tested positive for COVID-19 or not been tested at all. Texas Gov. Greg Abbott has blamed the state’s spike in infections on migrants, signing an executive order last week aimed at prohibiting private vehicles from transporting them.

“This already dangerous situation continues to deteriorate as the Biden Administration knowingly imports COVID-19 into Texas from across the border—willfully exposing Texans and Americans alike,” Abbott said in a statement last week after the Justice Department sued him over the order.

Testing, diagnosis, and treatment of migrants is generally handled by local governmental entities and non-governmental organizations after they are transferred out of Customs and Border Protection custody. That approach has raised questions, and there have been reports of migrants who tested positive being housed in Texas hotels without notifying local officials.

Given the rampant spread of the delta variant by Americans, border policy experts remain skeptical of the Biden administration’s contention that continuing Title 42 is a public health decision. Instead, they see it as a way to reduce the number of people being released into the U.S. and ease the political burden the situation has created for the White House.

“What Title 42 has become is a convenient way to sort of put unpleasant things out of sight, so to speak,” Jones said.

In a letter to the heads of the CDC and the Department of Health and Human Services last month, a group of medical experts claimed the Title 42 order has no scientific basis and “serves to weaponize public health” for political purposes. They also noted DHS had failed to adhere to testing and distancing guidance for migrants in its custody.

“It’s a cheap excuse for trying to discourage people from coming into the country, and it’s our sense on the ground it’s not discouraging people from coming into the country,” Heyman said. “It’s just encouraging them to try and try again repeatedly.”

According to Payan, Biden’s outright rejection of most Trump-era policies has left him with limited tools to curb migration, and resistance from the Mexican government is creating additional hurdles. Title 42 is one option that has been deemed politically acceptable, but the latest border apprehension numbers suggest it has not been especially effective.

“They definitely have a crisis on their hands, and they’re using this particular instrument to contain the immigration flow,” Payan said. “It’s not going to work. It has not worked... Immigrants keep coming.”

Critics of the Biden administration who favor more restrictive immigration policies agree the use of Title 42 is primarily political, but they counter that the authority should be utilized more aggressively. At this point, Mexico is refusing to accept most families, so single adults are the only ones being consistently expelled.

“This is all about political optics, this is not about ensuring the public health and safety of America,” Mark Morgan, former CBP acting commissioner, told The National Desk Tuesday. "The reality is they’re not applying Title 42 to thousands and thousands of illegal aliens coming to this country.”

Historically, border crossings have dropped in the summer months as the extreme heat makes crossing the desert too dangerous, but that does not appear to be the case this year. Apprehensions have continued to climb, even though most people detained are promptly expelled, and there is no end in sight.

Much of the Biden administration’s immigration strategy rests on long-term fixes and congressional reforms, but in the meantime, the desperation that drives migration has not faded. According to Jones, Trump’s policies created pent-up demand to seek asylum in the U.S. as thousands of Central Americans were left in limbo in Mexico, and that effect is still being felt seven months into Biden’s term.

“It created a massive pressure cooker, and what we’re seeing now is kind of the steam being released from that pressure cooker,” he said.

As long as Title 42 is in place, apprehension numbers will be artificially inflated by repeat offenders, and the prolonged pandemic is only exacerbating the conditions that compel Central Americans to try to make it across the border. Heyman cautioned this has all resulted in a situation that might simply be beyond the capacity of U.S. policy to address, regardless of who is in the White House.

“It’s like sweeping the ocean back with a broom,” Heyman said.