Is Biden administration ready for next onslaught of migrants?

On March 20, 2020, the Centers for Disease Control (CDC) used its authority under the Public Health Service Act (Title 42 of the U.S. Code) to order U.S. Customs and Border Protection (CBP) to expel illegal crossers without the processing ordinarily required by the immigration law provisions in Title 8 of the U.S. Code. That processing is done at crowded CBP processing centers, which subjects the migrants to an increased likelihood that they will contract COVID-19 if they don’t already have it — or spread it to others if they do. Processing takes an average of 50 hours for single adults and 62 hours for families.

The Title 42 order required CBP to process illegal land border crossers very quickly, which typically was about 15 minutes in an outdoor setting. If the crossers were subject to the Title 42 order, they were taken directly to the nearest port of entry and expelled.

On April 1, 2022, CDC terminated the Title 42 order.

The termination, however, will not be effective until May 23, to provide DHS with time to implement additional COVID-19 mitigation protocols.

According to CDC’s latest review of the Title 42 order, the Omicron variant produced a very high number of reported infections and hospitalizations in January, but the number of cases decreased rapidly, falling by more than 95 percent as of March 30. Deaths and hospitalizations also reversed course and began a swift descent. And the global availability of COVID-19 vaccines has increased dramatically. As of March 30, 64.9 percent of the world’s population had received at least one dose of a COVID-19 vaccine and 57 percent were fully vaccinated.

But the immigration consequences of terminating the Title 42 order are important too.

DHS Secretary Alejandro N. Mayorkas released a contemporaneous statement saying that DHS has put in place a comprehensive, whole-of-government plan to manage any potential increase in illegal border crossings.  

But will it be enough?

Sen. John Cornyn (R-Texas) said on Twitter that, “Dropping Title 42 without other changes in border policies will produce a tsunami of migrants & drugs.” 

And a recent statement from Border Patrol Chief Raul Ortiz support’s Cornyn’s fears. Ortiz said that the border patrol has made approximately 7,000 arrests each day in March. This puts the U.S. on pace to record more than 200,000 arrests for March and more than a million for the first six months in fiscal 2022.

DHS released a fact sheet on its plan describing the following four-point strategy:

1. “Acquiring and deploying resources to address increased volumes;
2. Delivering a more efficient and fair immigration process;
3. Processing and removing those who do not have valid claims; and
4. Working with other countries in the Western Hemisphere to manage migration and address root causes.”

But the major piece for dealing with expected increase in illegal border crossings is a new immigration process that will require hiring and training many additional USCIS asylum officers to adjudicate their asylum claims, which will take a substantial amount of time. 

Moreover, USCIS has a poor record for handling large case-loads. As of February, it had a total of more than 9.5 million pending applications, a 66 percent increase from the 5.7 million case backlog it had at the end of fiscal 2019. This includes about 435,000 affirmative asylum applications that were filed directly with USCIS as opposed to being submitted at an asylum hearing before an immigration judge.

The other part of the plan is a dedicated docket for families who are apprehended after making illegal border crossings. This has been tried before by two previous administrations with much smaller immigration court backlogs, and it failed both times.   

Human Rights First claims that the dedicated dockets in previous administrations led to high rates of in absentia removals, mistaken decisions that needed to be corrected on appeal, and increased backlogs. Former EOIR chairman Paul Schmidt has observed that when dedicated docket judges are not available for cases on the general docket, it places extra burdens on their judicial colleagues who are handling general docket cases. And Gracie Willis, a staff attorney at the Southern Poverty Law Center, thinks it is unfair to the individuals who have been waiting for their day in court for years to establish a “rocket docket” for families who have just crossed the border.

Termination of the Title 42 order is likely to be blocked by a federal court.   

On Aug. 13, 2021, a federal district court held in Texas and Missouri v. Biden that Biden’s termination of the “Remain in Mexico Program” was unlawful substantively because it caused the administration to systemically violate the mandatory detention provisions in INA section 1225. Terminating the Title 42 order will do the same thing.

Biden’s plan to expedite the processing of asylum claims by using USCIS asylum officers is based primarily on a rule that DHS issued on March 24, 2022, which authorizes USCIS asylum officers to adjudicate the asylum applications of migrants who establish a credible fear of persecution or torture in expedited removal proceedings. This is done now by immigration judges, and the immigration court had a 1,701,018-case backlog through February 2022.

But INA section 1225(b)(1)(B)(IV) provides that migrants in expedited removal proceedings “shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.” And Biden does not have the detention facilities that will be needed if he uses expedited removal proceedings to handle the additional asylum seekers who will make illegal crossings when the the Title 42 order is terminated.

Typically, undocumented migrants who make an illegal crossing or seek admission at a point of entry are detained by CBP for no more than 72 hours for processing (e.g., fingerprints, photographs, initial screening) and then removed or transferred to ICE custody for expedited removal proceedings if they claim a fear of persecution or torture or are released into the interior of the country.

As of March 27, 2022, ICE was only detaining 20,733 migrants, and Biden has no intention of increasing DHS detention capacity; in fact, he wants to cut more than 25 percent of the bed capacity at immigration detention facilities in his budget request for the next fiscal year.

This is not going to end well for Biden, and his average approval rating on immigration is already at 35.8 percent with disapproval at 58.5 percent.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at https://nolanrappaport.blogspot.com