As Title 42 winds down, DHS unveils 'plan' to manage migrant influx at U.S.-Mexico border

While Title 42 will remain in place following a court order, Homeland Security officials are preparing for its eventual end, releasing an updated plan describing how U.S. immigration and border authorities will deal with a potential increase in the number of people crossing the Mexican border once the Trump-era restriction is lifted.

On Monday, a federal judge blocked the Biden administration from winding down Title 42. However, even as the program may remain in place pending a court's ruling, DHS officials released a plan guiding how they will deal with more migrants, prosecute smugglers, and help non-governmental organizations and city and county officials shelter thousands of people who have been released after legally seeking asylum in the United States.

In a 20-page memo, Homeland Security Secretary Alejandro Mayorkas outlined six "pillars" of border security. This includes surging agents and resources to the southern border; expanding the capacity to process people; increased deportation, detention, and prosecution of some migrants; "bolstering" non-governmental organizations; increased crackdowns on human smugglers; and new migration agreements with Costa Rica and Panama, as well as "close cooperation" with Mexico to make it harder for people to move through those countries to the U.S. border.

The memo from Mayorkas comes as the Biden administration has faced a wall of criticism over an announcement that it would end Title 42—a pandemic-era policy that allowed U.S. Customs and Border Protection officials to rapidly expel people if they've traveled through a country with COVID-19 infections. The policy, which relies on a 1944 public health law, was used by the Trump administration to push migrants out of the U.S., including thousands of asylum seekers who are still marooned in northern Mexico. That policy has remained in place under President Joe Biden, even as other Trump border policy bulwarks, including the Migrant Protection Protocols, were shuttered.

CBP officials turned people away more than 1.7 million times since Title 42 was invoked in March 2020.

On April 6, Biden administration officials announced they would rescind Title 42 by May 23. The announcement was met with harsh criticism from Republicans, as well as some congressional Democrats—including Arizona Sens. Kyrsten Sinema and Mark Kelly—who argued that the agency shouldn't halt Title 42 without a plan in place to deal with what border officials insisted would be a rapid increase in the number of people attempting to cross the U.S.-Mexico border. 

In a statement, Kelly said that after reading the plan he has "more questions about how and when additional resources will hit the ground."

"We are less than 30 days from the Biden administration’s self-imposed deadline, and they still have a lot of work to do," he said.

During a press call at the beginning of the month, Homeland Security officials said they had been planning for the eventual lifting of the CDC's Title 42 order for "many, many months."

"And have as a result of those planning efforts put together a comprehensive strategy to address a number of contingencies, including the potential for an increase in the number of border encounters," said a Homeland Security official during the background briefing.

"When the Title 42 public health order is lifted, we anticipate migration levels will increase, as smugglers will seek to take advantage of and profit from vulnerable migrants," wrote Mayorkas. "The increase in migration being experienced by the United States is consistent with larger global trends: there are currently more people in the world displaced from their homes than at any time since World War II, including in the Western Hemisphere," he wrote.

Following an event in Tucson on April 15, Kelly told the Tucson Sentinel that U.S. officials estimated that the number of migrants attempting to cross the border would rise from around 7,000 people per day to more than 18,000.

"That's the estimate. I don't I don't know if that's exactly how it would turn out. But if, if that estimate is correct, the resources to process that number of people do not exist," Kelly said. He also argued that a plan, submitted to him and other members of Congress was not a plan, but rather what he called a "concept of operations."

"It's not a plan. It's the idea of how you would come up with a plan," he said. "Nobody's saying Title 42 should be in place forever. This is for a public health emergency." Kelly said. " But right now we need something. We don't want chaos at the border."

"We have a crisis," he said. "We don't want a crisis on top of the crisis. The way you avoid that is to have a plan," Kelly said.

More personnel, faster processing

Mayorkas also wrote that over the last 15 months, the Biden administration has implemented "critical reforms" to the nation's immigration system ending "cruel and unjust policies of the prior administration."

The Homeland Security chief wrote that CBP has 23,000 agents and officers working along the southwest border, including 600 additional personnel from other government agencies. He said that CBP has been able to shift 500 agents from processing to the border because of an increase in the number of civilian staff who can deal with migrants, as well as "processing efficiency." By May 23, he said that the agency will be able to hold up to 18,000 people in CBP custody, up from 13,000 at the beginning of 2021. The agency has also "doubled' its ability to transport people.

As part of this, he said, the agency will test for COVID-19 and will vaccinate people against the disease at 24 CBP sites.

CBP will also open new Enhanced Central Processing Centers, starting with one in Laredo, Texas, beginning on April 29, Mayorkas said. At the centers, Border Patrol agents will leave migrants in the custody of U.S. Immigration and Customs Enforcement personnel who will be "on-site to minimize delays" along with people from non-governmental organizations who will provide legal orientation services and "onward transportation" for people who are released by border officials under programs known as Alternatives-to-Detention.

The agency will also speed up processing, and restart processing for asylum seekers at ports-of-entry. In his memo, Mayorkas said closures of "this immigration pathway for much of the time Title 42 has been in effect has driven people between POEs at the hands of the cartels."

"Returning to robust POE processing is an essential part of DHS border security efforts," he said, adding that since the summer of 2021, DHS has accepted some "vulnerable individuals" through U.S. ports "on a case-by-case basis for humanitarian reasons." 

In places like Nogales, Sonora, hundreds of migrants have waited six to eight months to receive asylum, often waiting in shelters, shared apartments, or in some cases hotels, for a chance to seek protection in the U.S.

End of title 42 will 'pour gasoline on the fire'

Following the announcement that Title 42 would end, Republicans immediately jumped at the chance to hammer away at the Biden administration.

Arizona Gov. Doug Ducey called the previously obscure federal provision "one of the last measures still in place that helps our border agents do their jobs," because it allows federal officials to "prohibit the entry of those who potentially pose a health risk. Even as we emerge out of the pandemic, this is a no-brainer policy that protects the health and well-being of American citizens. The removal of Title 42 will cause considerable harm to Arizona’s border communities, our state and our entire country."

"It’s the federal government’s job to secure our border. Yet President Biden, Vice President Harris and Secretary Mayorkas have paid no mind to this crisis, and now they want to pour gasoline on the fire by lifting Title 42," he said.

Sens. Sinema and Kelly joined with Ducey, calling the decision to end Title 42 "unacceptable" without "a plan and coordination in place to ensure a secure, orderly, and humane process at the border."

"From my numerous visits to the southern border and conversations with Arizona’s law enforcement, community leaders, mayors, and non-profits, it’s clear that this administration’s lack of a plan to deal with this crisis will further strain our border communities," Kelly said. "Despite this decision, I’m going to continue pushing for Arizona to get every additional resource that we can to assist at the border."

In a statement Tuesday, Kelly said he had reviewed Mayorkas' plan.

“I’ve read it. I’ve got more questions about how and when additional resources will hit the ground," he said. "I have been raising the need for comprehensive planning on the border since early last year," Kelly said. "I recently made my fifth visit to the Arizona-Mexico border and I can tell you that folks on the ground don’t feel prepared for this policy change and still see a lack of communication and coordination."

"We are less than 30 days from the Biden administration’s self-imposed deadline, and they still have a lot of work to do," Kelly said.

Policy 'never justified'

Immigration and human rights groups praised the end of Title 42.

"We welcome this development, but a substantial rollback of expulsions can and should begin immediately so that more lives are not shattered in the interim," said Lee Gelernt, lead attorney for the American Civil Liberties Union. "We welcome this development, but a substantial rollback of expulsions can and should begin immediately so that more lives are not shattered in the interim. Using the public health laws as a substitute for immigration policy was never justified and the courts have rightly said so."

Members of the Kino Border Initiative—a bi-national group based in Nogales—praised the policy's end in a statement shared with the Florence Immigrant & Refuge Rights Project.

"As we celebrate this important first step toward restoring access to asylum in the U.S., we must also remember that people will continue to be harmed by this dangerous policy until May 23. Thus, it is critical that the administration take immediate action to ensure that during this termination implementation period, immigration authorities use their discretionary power to immediately begin exempting the most vulnerable individuals and families from Title 42," the groups wrote. They added that the policy's end "does not change the horror that this policy has needlessly inflicted on tens of thousands of people for the last two years."

"For two years, we have borne witness to the life-threatening circumstances that Title 42 has forced asylum seekers into," they wrote. "People are threatened and extorted; they have been kidnapped and held hostage; they regularly report having to save their children from being kidnapped in broad daylight; and they face discrimination in housing, employment, and education for their children. They have not had access to life-saving medical care for themselves or their children."

And, the two groups pushed for the Biden administration to work "swiftly to ensure that the planned return to humane, fair, and safe border processing lives up to this administration’s promises," and work with groups like KBI to "welcome all people seeking protection with dignity." 

In his memo, Mayorkas outlined a program that will rely on non-governmental organizations—which would include groups like Catholic Community  Services, which manages Casa Alitas with Pima County—to help migrants who are released from DHS custody. He noted that Congress had authorized $150 million for relief organizations under a program managed by FEMA.

In a memo to the Board of Supervisors, Pima County Administrator Jan Lesher said that FEMA awarded $3.2 million for Casa Alitas under FEMA's Emergency Food and Shelter Program, fully funding the county's efforts to shelter asylum seekers through June 2022.

CBP Commissioner Chris Magnus defended the decision, and noted that the CDC's order about Title 42 was "implemented at the height of the pandemic, (and) is not a border management authority."

"Throughout our agency’s history we have capably managed immigration at the border utilizing the authorities under Title 8 of the U.S. Code (traditional immigration management authorities)," he said. "These authorities allow non-citizens appropriate access to make asylum claims and include a range of enforcement options to hold individuals accountable for entering the U.S. illegally. This means most individuals who cross the border without legal authorization will be promptly placed in removal proceedings."

Magnus, the former Tucson police chief, agreed that with the end of Title 42, the agency would "likely face an increase in encounters above the current high levels."

"There are a significant number of individuals who were unable to access the asylum system for the past two years, and who may decide that now is the time to come," he said

Magnus added that CBP was "doing everything we can to prepare for this increase, ensure we continue to process people humanely, and impose consequences on those who break the law."

"At the same time, we will continue to use all available resources to secure our borders," Magnus said. "This includes the increased use of technology, on-ground monitoring, use of drones, and additional support personnel to supplement BP agents and free them up from processing duties whenever possible."

DHS will move to fast-track removals

Even as DHS will attempt in increase the processing of asylum seekers, Mayorkas said that DHS will also speed up "expedited removal" quickly deporting people, especially single adults.

People will still have the chance to apply for asylum, but if they fail to convince U.S. officials they credibly fear they will be persecuted or vulnerable to torture if they return home, they will still face deportation.

Mayorkas also said that the U.S. will move to speed up immigration hearings, and move to prosecute smugglers, as well as people under what he called a "repeat offender" program, and he said that DHS officials will target organizations smuggling organizations. He said that through April,  DHS and other federal agencies "intensified our disruption efforts, marshaling the largest surge of resources and disruptive activities against human smuggling networks in recent memory."

He said that so far, there have been over 2,500 arrests, investigations, and "disruptions of smuggling infrastructure," including the seizure of buses and safe houses. He added that federal government officials have also created what he called a new intelligence unit to "coordinate and strengthen the capability for early warning of migrant movements."

Mayorkas presses Congress for 'fix'

While he outlined how DHS would attempt to manage an increase in the number of people crossing the border, he called on Congress to "fix" the nation's immigration system.

"Our outdated immigration system was not built to manage the current levels and types of migratory flows that we are experiencing and is already under strain," Mayorkas said. "This is true at the federal level, as well as for state, local, and NGO partners."

"However, we have been able to manage increased encounters because of prudent planning and execution, and the talent and unwavering dedication of the DHS workforce and our state, local, and community partners," he said. "Despite these efforts, a significant increase in migrant encounters will substantially strain our system even further."

"We will address this challenge successfully, but it will take time, and we need the partnership of Congress, state and local officials, NGOs, and communities to do so," he added. "We are operating within a fundamentally broken immigration system that only Congress can fix."