Louisiana judge’s temporary restraining order complicates Title 42 wind-down—04-29-22

Immigration news, in context

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This week’s edition:

• In The Big Picture, we examine DHS’s new memo on ending Title 42.

• In Under the Radar, we discuss the recent increase in migrant injuries at the border.

The Big Picture

The news: On Tuesday, Homeland Security Secretary Ali Mayorkas issued an awaited memo on operational planning for the end of the Title 42 policy. This would have been a clarifying development as we barrel towards what’s going to be a logistically complex shift, had he not been preempted a day earlier by U.S. District Judge Robert Summerhays, who gave notice of an intent to prevent the administration from moving towards termination. That temporary restraining order was officially issued Wednesday.

What’s happening?

As we’ve discussed before, regardless of the illegality of Title 42’s use as an immigration-control measure, its dissolution will trigger some (self-inflicted) logistical challenges for the administration at the border. The specifics of how the administration chooses to prepare and deploy resources will have an enormous impact on how the situation plays out, both from a humanitarian and communications perspective.

To that effect, Mayorkas issued his April 26 memo, which delved into the background of the Biden administration’s border policy and enforcement mechanisms, including the deployment of additional officers and technology, discussed broader migration trends, and touted policies and guidelines issued with the intent to make the system fairer, e.g. ICE’s prioritization guidelines. The memo also goes into the often-overlooked question of the authorities at play here. In it, Mayorkas notes that, obviously, Homeland Security must process asylum requests made under Title 8 in the absence of the Title 42 order, and taking a dig at Congress by noting that “our broken immigration system was not built to manage the migration levels and types we are currently experiencing and is already under strain.”

The real meat of the document is discussion of six “border security pillars” that try to delineate separate efforts and approaches towards managing the aftermath of terminating Title 42. The first lays out “surging resources, including personnel, transportation, medical support, and facilities to support border operations,” which notes that Customs and Border Protection already has 23,000 officers and agents stationed around the southern border (fun fact for those unaware: CBP is the largest federal law enforcement agency by far). According to the memo DHS is also contracting out additional transportation and medical services, as well as coordinating with other agencies like FEMA to shore up its ability to provide medical treatment and maintain its vaccination scheme. It also notes that CBP is expanding holding capacity, including with the recent addition of “three soft-sided facility expansions” (read: tents) that added 1,300 beds.

The second pillar is around processing capacity, and includes some interesting concepts, like “​​a model that will co-locate CBP, ICE, NGOs, and possibly other entities” in so-called enhanced central processing centers, a consolidation that various observers have called for, and “en route processing,” e.g. issuing notice to appear charging documents electronically while migrants are in transit from one facility to another. The initiative would also attempt to digitize and streamline some of this processing, and have more of it occur at ports of entry as opposed to second or third locations. This all sounds like welcome efficiency in theory, though each is also an additional opportunity for due process violations if the department chooses to focus on expediency at the expense of procedural rigor.

Pillar number three is essentially a reiteration of the department’s powers at the border, and a commitment to use the remaining ones once expulsion is off the table. The key point is that DHS is “preparing to maximize the use of Expedited Removal for populations where removal is possible or likely,” a plank that was broadly expected. As we detailed last year, expedited removal was already used as a cudgel to supplant Title 42 in cases where expulsions were unavailable, which at the time mostly meant families with minor children (not that this was official executive policy, as there were no qualms with expelling thousands of Haitian parents and children later that same year).

We meticulously broke down that law when the Trump administration tried to expand its use, but in short summary, it is a mechanism by which the government can quickly deport people who’ve been in the country without status for two years or less. The Biden administration reversed the attempt to expand it to its full statutory authority, instead keeping the qualification at two weeks, not two years, and within 100 air miles of the border, but that would still include everyone arriving at the southern border without entry documentation.

Functionally, it would work similarly to Title 42, with two key differences: those removed would be deported, not expelled, which would have much more far-reaching consequences down the line, and most crucially, the process can be stopped by a humanitarian claim. So, people actively making asylum claims would not be included, but in practice the people who decide whether or not someone in fact did make an asylum claim are CBP personnel, who might not be incentivized to acknowledge one. Also emphasized are a new rule going into effect May 31, which would vest initial jurisdiction of border asylum claims with USCIS (and which we discussed at length when it was first floated last year), in theory allowing much more sped-up processing of claims, and expedited dockets for asylum-seeking families specifically (which, as we noted, present their own slate of due process concerns).

The fourth pillar deals with the landscape post-arrival. It promises closer coordination between border authorities and NGOs, a somewhat fraught relationship for obvious reasons. Advocacy and legal groups have sometimes begrudgingly played a role in CBP’s border enforcement initiatives, such as helping to screen particularly vulnerable migrants for exemptions from existing programs like Title 42 and the Remain in Mexico. The department is also promising funding for “partners” to contend with expected increases in asylum seekers, as well as better communication with states and localities, no doubt to avoid scenes like migrants being randomly dropped off without warning in communities not immediately prepared to accommodate them, a situation that played out throughout the Trump and then Biden administrations.

The remaining two are mainly about general enforcement objectives outside the U.S., like the ominously named “Migration Intelligence Cell,” which “has highlighted to the entire Intelligence Community the priority of human smuggling to prompt additional focus. This intelligence will be used for disruption activities as well as border security and management actions.” The memo goes on to discuss efforts to combat smuggling and coordination with other countries in the western hemisphere on curtailing migration, a longtime tenet of border externalization embraced by administrations both Democratic and Republican.

None of this is really a radical departure from current policy or practice, which has worried some skittish Democratic lawmakers and been used as fodder by GOP legislators, who were practically frothing at the mouth while questioning Mayorkas this week at various separate Congressional hearings this week. The House Homeland Security Committee hearing on Wednesday was particularly vicious, with Republican members variously telling Mayorkas that he was a liar attempting to deceive the American people, that they were disgusted by him, that he was not a man, and that he should resign immediately and avoid the humiliation of an impeachment once the party retook the chamber later this year.

Not that Mayorkas’ preparations will really matter much for now, as the administration was stopped by Trump-appointed Louisiana District Judge Summerhays from continuing to prepare for the end of the Title 42 policy. The lawsuit was brought by over 20 states led by Arizona, Louisiana, and Missouri, contending that the attempt to terminate the order was itself unlawful. Notably, the strident complaint barely even touches on the fact that the order is supposed to be downstream from public health concerns, instead calling it “the only safety valve preventing this Administration’s disastrous border policies from devolving into unmitigated chaos and catastrophe” (emphasis theirs).

If that sounds a bit nakedly political for a supposed legal argument, the whole complaint reads like that, quoting multiple Democratic senators and assorted Border Patrol personnel as quoted in various right-wing news stories. The main legal arguments aren’t taking the form of arguing that the policy is needed on public health grounds, but that the termination was procedurally deficient, and that the impact on the plaintiff states isn’t being considered thoroughly enough. It seizes on the fact that there was no notice-and-comment period for the termination, and that the CDC hasn’t attempted to consider the state’s reliance interests.

As we’ve noted often, many of Trump’s restrictive immigration policies were ultimately struck down in court with similar arguments, made under the Administrative Procedure Act, so this might seem like more of the same. However, there are some key differences here: terminating Title 42 isn’t instituting some broad new policy that is completely breaking with precedent, as Stephen Miller’s plans often did; it is terminating an unprecedented emergency order and returning the system to the pre-COVID status quo. It has also long been the official posture that the CDC would periodically reevaluate Title 42 and potentially terminate it at a time when it was no longer needed, and the states are straining the argument that they will be massively impacted somehow.

Nonetheless, Summerhays agreed that they were likely to succeed on the merits and issued his rather short TRO, which interestingly is only active for fourteen days as of Wednesday, driving home the point that it’s not meant to stop the dissolution of Title 42 so much as the preparations for the dissolution. Just so there’s no doubt, he writes that “defendants shall act in good faith to avoid taking actions that implement the Termination Order in advance of its May 23, 2022, effective date.” So, for now, the administration is barred from taking steps to prepare for the order’s termination, even as it is likely to seek a higher court stay of the injunction to let it end the policy.

How we got here

We’ve written a lot about Title 42—at this point it’s been in effect for more than two years, admittedly far longer than we expected it to be—but to recap, the Trump administration first invoked the policy in March 2020. Even then, at the onset of the pandemic, the supposed public health rationale seemed flimsy. The statute allows the Surgeon General (who transferred authority to the CDC) to suspend entry of people coming from a foreign country where there is an “existence of any communicable disease” in order to prevent the “introduction of such disease” into the U.S. When Title 42 was first implemented, there were more than 13,000 confirmed Covid-19 cases in the United States (and an untold number of unconfirmed cases, since testing was barely accessible then)—far more than there were in Mexico.

At the time, Title 42 was one of a number of policies meant to limit any kind of travel or migration to the U.S. The Trump administration implemented several travel bans that applied to nationals of China, Iran, and the Schengen countries; it also suspended “non-essential” travel via land borders, meaning Canadian and Mexican nationals couldn’t come to the U.S. Meanwhile, deportations continued, meaning that the U.S. immigration system was effectively exporting Covid-19 to other countries. The Biden administration has since lifted all of these travel restrictions, with one glaring exception: Title 42.

There have been several efforts to dismantle Title 42, or to at least chip away at it. In the fall of 2020, a federal district court ruled that unaccompanied children could not be expelled under Title 42; that ruling was later overturned. After taking office, the Biden administration chose not to apply Title 42 to unaccompanied children but kept the policy in place for everyone else.

In January 2021, shortly before Trump’s term ended, the ACLU filed a lawsuit against Title 42 on behalf of migrant families with children who had been expelled or faced expulsion into Mexico. The Biden administration chose not to end the policy, but instead agreed to create a temporary exemption process; in the meantime, the legal challenge would be put on hold. Under the exemption process, local legal service providers at the border would identify which migrants were most vulnerable in Mexico—typically it was people who faced or could face gender-based violence, threats due to their sexual orientation, or people who had severe medical conditions—and pass those names along to the ACLU. The ACLU would then give those names to CBP, which would let a handful of migrants in through ports of entry on any given day. 

In effect, the exemption process turned legal service providers into screeners for the government. It was a difficult position for them to be in, but at the time, advocates reasoned that it was a temporary measure that would help get migrants into the U.S. to file asylum claims while the administration came up with a plan to wind down—and eventually end—Title 42. By that spring, there were reports that the Biden administration planned on ending Title 42 in phases, starting at the end of July. It would first stop applying the policy to families with children. But when the time came, the administration didn’t make any public announcements that it would end Title 42; in response, the groups involved in the exemption process pulled out. Title 42 continued and the lawsuit resumed. 

The suit, Huisha Hush v. Mayorkas, was a partial success for migrants expelled into Mexico and the advocacy groups suing on their behalf. A federal court ruled that the policy is lawful—though the judges noted that the public health rationale gets thinner by the day—but said that migrants cannot be expelled “to places where they will be persecuted or tortured.”

There’s plenty of documentation of migrants being persecuted or tortured after being expelled to Mexico an October report from Human Rights First, for example, documented more than 7,000 kidnappings and other violent attacks migrants faced in Mexico since the Biden administration took office.

What’s next?

Now, the administration finds itself in a place where it can’t even prepare for the end of Title 42. It is almost certainly going to try to get an appellate court to strike the Summerhays injunction down in time for it to move ahead with its planned termination date. Ironically, in achieving an injunction in part by arguing that the termination will cause chaos and confusion, the states are introducing plenty of uncertainty with this legal action.

There are a few conceivable scenarios here. In one, the administration is able to get the TRO lifted with enough time to put into place its preparations for the end of the Title 42 order, and the termination proceeds as planned. It is almost impossible to avoid images of what may seem like border chaos as thousands and thousands of people attempt humanitarian claims in a process that was for the most part inaccessible for two years. The general public will be easily misled into thinking that these people are being uniformly allowed in as opposed to processed under fundamentally the same system as existed for the majority of the Trump administration.

In another scenario, Biden’s attorneys fail to get the TRO overturned and it is extended to the point that it continues in force on May 23 and the administration is unable to terminate Title 42 as planned, and will be unable to do so until the legal process plays out. In the last, the TRO remains in place for the full 14 days, or perhaps longer, but is lifted by the time that May 23 actually rolls around. At that point, the administration will have to decide if it proceeds with the termination—having been essentially prevented from planning for it—or delays. In all likelihood, it ends up delaying the termination to avoid the possibility of disorder after a border policy change it couldn’t prepare for.

In any case, Biden’s political opponents will claim victory, and utilize the situation as ammunition in the midterms. Polls are showing that immigration has been steadily climbing as an issue of concern with U.S. voters, with a clear partisan bent: Democrats care less and less, and Republicans care more and more. The upshot is that immigration hysterics can be used to drive out Republican voters, but not so much Democratic ones, which will tend to benefit restrictionism.

Under the Radar

Trump’s taller border wall is sending migrants to the hospital

Several migrants have fallen while trying to climb the 30-foot wall along certain parts of the U.S-Mexico border, causing severe injuries including skull fractures and shattered limbs, according to a new report. The report, published in the medical journal JAMA, found that the number of patients arriving at the UC San Diego Medical Center’s trauma ward increased fivefold since 2019, when the Trump administration’s new wall along certain segments of the border first went up. Much of Trump’s wall replaced a shorter existing structure.

These injuries are part of a broader trend. Since the 1990s, Border Patrol has used a policy called “prevention through deterrence” to funnel migrants into parts of the border that are more difficult to cross—or, as the agency’s directive put it, into “harsh terrain less suitable for crossing and more suitable for enforcement.” Prevention through deterrence has worked in that it’s made crossing the border far more difficult and dangerous; but it hasn’t stopped migrants from attempting the journey. Instead, it’s increased migrant injuries and fatalities.