Biden administration lays out post-Title 42 border plan

Biden administration officials on Tuesday laid out their border and immigration enforcement plan as a pandemic-related border security exception draws down.

The Trump-era policy known as Title 42 is due to sunset May 23, despite increasingly vociferous Republican attacks that its end will spell doom for border management.

Homeland Security Secretary Alejandro Mayorkas, a central target of the attacks, on Tuesday published a 20-page memo detailing how the administration intends to prevent the change in border policy from setting off disarray.

The memo describes a work plan for how to enforce U.S. immigration law without the added legal power to immediately expel migrants encountered at the border that Title 42 granted officials.

The administration’s plan is divided into six “border security pillars,” which encompass everything from short-term surges in personnel and resources to the border to a program to deter migration from Latin America.

One key element of the plan is the intent to increase the legal consequences of unauthorized border crossings, an element of deterrence that was decreased under Title 42.

“Core to this plan is our commitment to continue to strictly enforce our immigration laws,” reads the Mayorkas memo.

“This includes increased use of Expedited Removal, detaining single adults when appropriate, referring for prosecution those whose conduct warrants it, and accelerating asylum adjudications that enable us to more quickly process and remove from the United States those who do not qualify for relief under our laws,” it adds.

Mayorkas is set to be grilled by House Republicans later this week when he testifies on the administration’s border policies, particularly Title 42.

The tenor of the Mayorkas memo projects a focus on tough enforcement, particularly the use of expedited removals, while expanding the potential for processing asylum applications.

Immigration law allows U.S. officials to summarily repatriate many migrants who cannot make an asylum claim, have crossed the border surreptitiously, and are caught within 100 miles of the border and within 14 days of having entered the country.

Like Title 42, expedited removals take fewer resources to expel more individuals, but unlike Title 42, migrants are allowed to exercise their right to claim asylum in the expedited process.

While the termination of Title 42 has brought Republican attacks and discomfort from some vulnerable Democrats, the administration has spent more than a year fielding attacks from the left on its implementation of the policy, which empowered officials to ignore key aspects of U.S. asylum law.

Still, the administration’s focus in winding down Title 42 has been to downplay the idea that it is fomenting chaos at the border.

Like the Trump administration before it, the Biden administration has insisted that Title 42 was exclusively a public health policy, with its continued enforcement subject to the determinations of the Centers for Disease Control and Prevention (CDC).

While that assertion angered immigration advocates, who said it amounted to the administration hiding behind the CDC to cut corners on border enforcement, it has also helped the administration navigate a court case against the recission of Title 42.

A Louisiana judge Monday temporarily forced the Department of Homeland Security (DHS) to keep implementing Title 42, but the CDC’s public health determination was not subject to the same administrative regulations as DHS.

That means that if a temporary injunction is put in place, it will block DHS from executing its plan to draw down Title 42, but it might not be enough to grant border officials the authorities they had under the Trump-era policy.

“If and when the court actually issues the [temporary restraining order], the department is planning to comply with that order,” an administration official told reporters Tuesday.

“It really makes no sense to us that the plaintiffs would demand and that the court would order that DHS be stopped in its use of expedited removal, which again is going to prevent us from adequately preparing for the aggressive application of immigration law when the public health order expires,” added the official.

Still, Republicans are on the offensive over the end of Title 42. A group of Republicans and a few Democrats led by Sen. James Lankford (R-Okla.) is leading a charge to codify the Title 42 powers given to border officials.

Such legislation seems unlikely to pass, but a continued discussion on Title 42, plus a likely surge in immigration over the summer, will provide valuable ammunition for the GOP before November’s midterm elections.

And while immigrant advocates wanted to see the end of Title 42 because it all but ended asylum protections, a protracted immigration fight is likely to distract from their policy win and other issues Democrats would rather engage.

“Title 42 is going to be the dominant discussion … that becomes the ‘Latino issue,'” Rep. Raúl Grijalva (D-Ariz.) lamented Tuesday.

–Updated on April 28 at 9:13 a.m.