As COVID border restrictions end, questions about impact on Arizona remain

As Title 42 lifted Thursday night, border towns like Nogales were quiet, but the Biden administration faces legal challenges — one from Florida's attorney general and the other from the ACLU — over how to manage migrants coming across the U.S.-Mexico border.

On both sides of Ambos Nogales — the border community split by a metal wall topped with concertina or "razor" wire — Title 42 came and went without notice. In Nogales, Sonora, a few members of the Mexican national guard waited around nervously, but food stands continued to sell snacks as hundreds of cars hummed in the evening as people waited to return to Arizona through the U.S. border crossing.

In Nogales, Ariz., about two dozen migrants lined up after getting off a bus on the American side of the port of entry. One little girl tucked in close to her mother as a U.S. Customs and Border Protection officer and a security guard smiled with the crowd before marching them south across the line. Officials refused to say if this group were the last of those to be expelled after three years of Title 42, or if they were deported under a brace of efforts launched by the Biden administration in the last few weeks to reduce the number of migrants coming to the United States.

As the federal goverment lifts many COVID-19 pandemic policies, the public health justification for enforcing Title 42 rules at the border goes with them. Meanwhile, the feds have added new restrictions to those migrants attempting to make asylum claims under U.S. and international law.

In recent days, Homeland Security officials said U.S. Border Patrol agents and CBP officers face more than 10,000 daily crossings along the southwestern border daily after Title 42 expires, prompting some local officials to warn about a potential "humanitarian disaster" without federal help, including continued funding for shelter space, transportation, health care and food. On Tuesday, border officials apprehended more than 11,000 people who crossed the border, the New York Times reported.

However, there are signs the wave has crested. Border Patrol Chief Raul Ortiz told reporters during a closed-door meeting he does not expect to see 18,000 apprehensions in a single day.

"The increases that we’ve seen in the last five to six days, I think, were really the surge. I don’t — after May 11 — I don’t expect us to have 17-18,000 apprehensions like some predicted," Ortiz said in El Paso, the Washington Examiner reported.

"I think that what we see now is continued effort by some to message incorrectly that once Title 42 goes away, it’s going to be a free for all along the border," Ortiz said. "I don’t see that being the case. Our agents will be out there performing their duties."

In Tucson, Diego Piña Lopez, the program manager for Casa Alitas — part of Catholic Community Services which manages six shelters in a partnership with Pima County and the city of Tucson — said that the number of people decreased Thursday, though shelters are at capacity.

Casa Atlias had around 1,200 people floating through their system on Tuesday, and received 300 people from buses after people were released in Naco, Douglas and Nogales on Monday. The release of 261 people in Douglas prompted city officials to push for a federal emergency declaration, and local and state officials—including Ariz. Gov. Katie Hobbs—said CBP officials weren't communicating about releases and failed to adequately plan for the end of Title 42.

"This is not sustainable long-term and capacity will be exceeded at  the community level without federal intervention," said the office of the mayor of the border city of Douglas. "It is imperative that a federal emergency declaration  be explored to provide immediate relief and necessary resources, personnel and infrastructure that is  assumed, but does not exist here. The onus to fill this need is unfairly placed upon the community of  Douglas, who will rise to the challenge as we have always done, until we receive the overdue attention  and support."

John Modlin, the chief patrol agent for the Border Patrol's Tucson Sector, said his agency was "more prepared" for a surge of people coming across the border.

"It's hard to understand what's coming, but what I can tell you is that we have dealt with surges before," he said during a press conference on Monday. "This will be a surge, but I think the difference this time is we're more prepared for it because we've been on the edge of this happening for a while."

"The important thing is that over the last 18 months to two years, there's probably been six or seven times that we thought Title 42 was going to go away. And every time that happened, we prepared more. We tabletop extensively," he said.

U.S. Rep. Raúl Grijalva, who represents the district that stretches across much of Arizona's border with Mexico called the end of Title 42 "welcome news." However, he pushed Mayorkas and other federal officials to better coordinate efforts, including the involvement of FEMA.

In a letter to Biden and Mayorkas, Grijalva urged the administration to "swiftly provide additional federal resources in advance"  from the Emergency Food and Shelter Program-Humanitarian program and from the newly-approved Shelter and Services Program. "As the numbers continue to grow, Arizona partners are in desperate need of federal resources to continue to provide shelter, medical services, and other support services to asylum seekers," he wrote.

'The border is not open' 

Over the last week, Homeland Security officials have unveiled a brace of measures intended to mitigate the number of people, including a new "transit ban," a parole process for migrants to come into the U.S. temporarily as their asylum case moves through the court, and new "legal pathways" including "regional processing centers," and expanded use of a phone application known as CBP One for asylum seekers.

Homeland Security Secretary Alejandro Mayorkas said Wednesday that the Biden administration was "focused on solutions and have a robust plan to humanely manage the border through deterrence, enforcement, and diplomacy." With another 1,500 troops from the Pentagon, and  multiple countries across the Western Hemisphere" the departments of Homeland Security and State "are implementing that plan within the constraints of a broken immigration system that Congress has repeatedly failed to fix, including by not acting on President Biden’s comprehensive immigration reform proposal, bipartisan legislation to protect Dreamers and farm workers, or repeated requests for additional resources."

"Starting tonight, people who arrive at the border without a lawful pathway will be presumed ineligible for asylum," Mayorkas said, adding there were 24,000 border officials on the border, and DHS "surged" troops and contractors, as well as over 1,000 asylum officers to "help enforce our laws."

"The border is not open," he said.

A shorthand for expansive powers under U.S. law, Title 42 was first enacted by the Trump administration during the early days of the COVID-19 pandemic in March 2020. For the last three years, Title 42 was used to quickly expel thousands of people from the U.S., including asylum seekers who have traveled through countries with high number of COVID-19 cases. The policy was implemented to mitigate the spread of COVID-19 into historically cramped, and often unsanitary border facilities, allowing agents to process people in the field, and then expel them back to "their country of last transit," which was almost invariably Mexico.

During the policy's first year, CBP officials expelled people from the U.S. over 197,000 times. The following year, CBP officials used Title 42 to expel people from the U.S. over one million times. However, with the policy in place, the number of encounters between border officials and migrants rapidly rose as people made multiple attempts to enter the U.S. Meanwhile, thousands of other migrants waited in northern Mexico for months for a chance to seek asylum until earlier this year.

Critics, including the National Immigration Forum, argued the program "failed to treat migrants with dignity, or create a secure border," and rather it "put vulnerable migrants in danger and benefited smugglers and the cartels."

The Biden administration sought to wind down Title 42, and after a series of false starts announced in January the policy would end just before midnight on May 11.

Troy Miller, the acting commissioner for CBP, said earlier this year, the U.S. announced "parole processes" for people from Venezuela, Cuba, Haiti, and Nicaragua, allowing people safe and orderly pathways to access the United States" while imposing consequences "for those who do not use them."

The policy is part of a partnership with the Mexican government, which has said it will take 30,000 people from Venezuela, Cuba, Haiti, and Nicaragua per month after they cross the U.S.-Mexico border between the ports after May 11.

"As we have said many times, the border is not open to irregular migration. Individuals should not put their lives in the hand of smugglers, only to face steep consequences, including at least a five-year bar on reentry and potential criminal prosecution for repeated attempts to enter unlawfully, and be sent back."

'Game of whack-a-mole'

On Wednesday, Florida Attorney General Ashley Moody filed a lawsuit against U.S. Customs and Border Protection arguing the agency's use of parole to decompress the number of people in custody at Border Patrol stations and U.S. crossings along the U.S.-Mexico border violated a previous court order.

Moody demanded a halt to the process, arguing the use of parole violated a court order from a 2021 lawsuit over the use of prosecutorial discretion—a long-held process that allows immigration officials to focus enforcement efforts on particular people, and is routinely used by law enforcement.

While the court blocked the use of prosecutorial discretion, Moody accused Homeland Security officials—who oversee CBP—of restarting the "mass release of migrants" on the border as Title 42 was lifted after a DHS spokesperson said the agency plans to use the "targeted use of parole" to allow Border Patrol to "focus its resources most effectively" on quickly removing people who do not have a legal basis to remain in the country."

"In short, rather than seek a stay of the court’s judgment in good faith, the Biden administration plans to continue its game of whack-a-mole with Florida and with this court by promulgating yet another unlawful policy," Moody argued.

In her filing, she argued the policies are "unquestionably cynical, in bad faith, and contrary" to federal law. "It is also, unfortunately, consistent with the game of whack-a-mole DHS has been playing with Florida and this court for almost two years,” she wrote.

In their response, CBP officials defended the policy, writing there "are important distinctions" between the policy blocked by the court and the new one, arguing it it temporary and "the policy focuses to an even greater degree on ensuring the health and safety of individuals."

While Moody attacked the policy as one created for "operational convenience" CBP officials said Parole with Conditions "was adopted for use as necessary to address an imminent and dramatic increase arrivals at the southwest border in the coming days and the elimination of Title 42 expulsion authority." While DHS has laid the groundwork to mitigate the number of people coming irregularly, and therefore sought to control how many people may be in CBP custody, the agency said a " significant risk remains that the increase in arrivals will be great enough that these measures are insufficient to mitigate the risk of overcrowding at border facilities that could overwhelm the border and raise serious health and safety risks to non-citizens and immigration officials."

The new parole policy, agency officials wrote, "can only be used in certain exigent circumstances, such as where U.S. Border Patrol has apprehended over 7,000 non-citizens per day across the southwest border over a 72-hour period, or where the average time in custody has exceeded 60 hours."

The agency said that by Tuesday, May 9, the agency had more than 27,000 people in custody, and was over capacity in eight of nine sectors along the Southwest border. Without Parole with Conditions, the agency said Border Patrol would have over 45,000 people in custody by the end of the month.

In 2019, overcrowding and unsanitary conditions were linked to the deaths of six children in U.S. custody, and in early 2020, the Tucson Sector—which runs from the Yuma County line to the New Mexico border—faced a lawsuit after migrants said they endured squalid conditions. CBP later paid $3.8 million in civil fees and was blocked from holding people for more than 48 hours without access to beds, blankets, a shower, and food that meets acceptable dietary standards.

CBP officials said the policy is not "an open-ended new processing pathway as Florida claims, rather the order "makes clear that once capacity in a sector" is below 95 percent, Parole with Conditions should be rescinded. Further, they argued the process should "used sparingly and only after a case-by-case determination" for each person. "Such approval in no way permits blanket paroles from a Sector," they added.

U.S. Judge Kent Wetherwell disagreed, complaining the "Southwest border has been out of control for the past 2 years. And it is about to get worse because, at midnight tonight, the Title 42 order expires."

Nominated to the bench during the Trump administration, Wetherell said he believed the new policy "appears to be materially indistinguishable" from the one vacated in Florida.

"The court fails to see a material difference between what CBP will be doing under the challenged policy and what it claims that it would have to do if the policy was enjoined, because in both instances, aliens are being released into the country on an expedited basis without being placed in removal proceedings and with little to no vetting and no monitoring," he wrote.

Wetherell blocked the Biden administration from using the case-by-case parole for the next two weeks. The Biden administration is expected to appeal immediately.

'We’ve been down this road before with Trump' 

Meanwhile, the American Civil Liberties Union, backed by the ACLU of Northern California, the Center for Gender & Refugee Studies and National Immigrant Justice Center, challenged the Biden administration's new policy—which slid into place as Title 42 was lifted—which blocks many migrants from getting asylum if they have traveled through other countries without seeking protection before coming to the U.S.-Mexico border.

People can seek asylum through the CBP One, a smartphone application that allow migrants to set up an appointment at a U.S. port,  and some migrants can seek asylum at newly-established regional centers, however, advocates called these systems flawed.

The "transit ban" was immediately criticized by immigrant aid groups and human rights organizations, including the Kino Border Initiative and the Florence Project.

"This rule is cruel, punitive, and effectively ends asylum for the majority of the people we serve," said Laura St. John, Florence Project Legal Director. "Rather than using his presidency to restore humanity and dignity to the border, President Biden has chosen to double down on the Trump playbook and implement a slew of anti-immigrant restrictions that will illegally block thousands of people from accessing protection in the United States."

The groups said the rule was "rushed" into effect before the end of the Title 42 despite more than 50,000 comments in opposition. "The administration was obligated to consider each individual comment before implementing a final rule, a process which takes months. Yet just six weeks later, a nearly identical rule is being implemented at the border," the groups wrote.

"We are bitterly disappointed that despite tens of thousands of comments in opposition and the abject cruelty of this rule, the administration has decided to move forward with it," St. John said. "In addition to narrowing the pathway for accessing asylum to a largely inaccessible and discriminatory app, the rule implements extremely punitive consequences for people who enter between ports of entry, something that even a cruel expulsion policy like Title 42 didn’t do. We stand in solidarity with the people we serve and partner organizations in wholeheartedly opposing this rule and will continue to strive for a welcoming border for all."

The ACLU argued the new policy "largely mimics two Trump-era policies — known as the "entry" and “transit" bans — which were blocked by the courts." 

"The Biden administration’s new ban places vulnerable asylum seekers in grave danger and violates U.S. asylum laws. We’ve been down this road before with Trump,” said Katrina Eiland, managing attorney with the ACLU Immigrants’ Rights Project. "The asylum bans were cruel and illegal then, and nothing has changed now."

The ACLU wrote that U.S. law does not allow the administration to restrict access based on manner of entry, or whether someone applied for asylum elsewhere. Further, the ACLU wrote migrants cannot "meaningfully seek asylum in transit countries" because many "lack a functioning asylum system, others have systems that are stretched to the breaking point, and most are not remotely safe for asylum seekers to find refuge."

Advocates argued the courts have already "recognized these principles in rejecting the previous asylum bans that the new rule tries to combine and re-impose."

"This unlawful rule relies on a mobile app that functions poorly, is available in just three languages, and requires people to enter a lottery for a woefully insufficient number of appointments," said Keren Zwick, director of litigation at the National Immigrant Justice Center. "Even more egregious, the rule perpetuates false notions that people fleeing persecution are safe in Mexico and Central America, and it offers purported solutions that will be routinely unavailable, especially to migrants who are not from the Western Hemisphere."

"In doing so, the rule levies special harm on some of the most vulnerable migrants, including women, LGBTQ people, and Black and Indigenous people," Zwick said.