DHS Girds for Post-Title 42 Migrant Deluge at the Border

Likely too late, though major border policy changes Biden is unlikely to enact would help

By Andrew R. Arthur on March 21, 2022

In my last post, I noted: “It is past time for the president to get serious about how bad the Southwest border has become.” It appears that DHS, at least, is getting serious about how much worse illegal immigration is going to get once expulsion orders issued by CDC under Title 42 of the U.S. Code in response to the Covid-19 pandemic expire. The department’s planned response appears to be too late, though an (unlikely) White House policy shift could restore order to the U.S.-Mexico line.

Title 42. Various iterations of Title 42 orders have been in effect since late March 2020, and direct the expulsion of illegal migrants, as well as aliens at land ports of entry who lack proper admission documents. At the outset, those orders were enforced fairly rigorously: Of the nearly 518,500 aliens CBP encountered at the Southwest border (the sum of Border Patrol apprehensions of illegal migrants and aliens deemed inadmissible by CBP officers at the ports under Trump, more than 452,100 (87 percent) were expelled.

Since the outset of the Biden administration, Title 42 expulsions have dropped as increasing numbers of migrants have been processed under the Immigration and Nationality Act (INA) instead. Last month, of the nearly 165,000 aliens encountered at the Southwest border, just over 91,500 were expelled under Title 42 (55 percent). The rest were processed under the INA.

Of the aliens who were not expelled by Biden’s DHS under Title 42, tens of thousands have simply been released into the United States, although section 235 of the INA mandates their detention.

DHS Preparing for the End of Title 42. Axios has revealed that DHS is preparing for the termination of the Covid-19-related Title 42 orders. (The CDC has until March 30 to complete its review of whether to keep the Title 42 order in place.) The outlet reports: “U.S. intelligence officials are privately bracing for a massive influx of more than 170,000 migrants at the Mexico border if COVID-era policies that allow instant expulsions during the public health emergency are ended”, citing unnamed sources.

Given the fact that Border Patrol apprehended more than 158,000 illegal entrants at the Southwest border in February, the 170,000 migrants in question appear to be in addition to the flow of other foreign nationals making their way to the United States.

Last April, about 173,700 aliens were apprehended at the Southwest border after entering illegally — a figure that spiked to over 200,000 by July. Assuming that Title 42 is lifted next month, and that the usual migrant flow does not get worse, agents could be dealing with some 340,000 people at the border in April.

That would exceed the prior monthly apprehension record at that border, set in March 2000 when agents caught just over 220,000 illegal migrants. A surge that large would swamp CBP’s ability to process, transport, and care for those aliens, let alone perform its other duties (like stopping drugs and terrorists at the border).

DHS’s Plan. To prepare for the onslaught, the federal government is setting up the Southwest Border Coordination Center (SBCC), which Axios describes as “essentially a war room to coordinate an interagency response” and is also preparing a “Southwest Border Mass Irregular Migration Contingency Plan”.

Although the SBCC is still in the planning stages, “DHS is asking for senior officials to support the center from relevant agencies such as the departments of State, Justice, Defense and Health and Human Services.”

DHS Is also looking for volunteers from across various agencies, including ICE, TSA, USCIS, and medical personnel from HHS, to assist CBP’s border staff. I doubt that many of them have ever been in south Texas in the depths of summer, but it is sweltering. DHS had better lock down those volunteers quickly before that word gets out.

Good News and Bad News. The good news is that the Biden administration is planning in advance for the anticipated border deluge. A lack of planning in Del Rio, Texas, exacerbated the mass migration that occurred there in September (turning “Del Rio” into “shorthand for a border in chaos”). I was there in August, and there were too few agents, too few buses, and no infrastructure in place at the border for processing.

The bad news is that neither the president nor his advisors seem poised to reverse their immigration policies, which are drawing those illegal migrants to come to the United States to begin with.

Axios quotes White House spokesperson Vedant Patel, who asserted: “As always is the case this Administration is working every day to provide relief to immigrants, restore order, fairness, and humanity to our immigration system and bring it into the 21st century.” I am all about order, fairness, and humanity, but in this administration those words have become code for “non-enforcement”.

That said, the outlet reports that “some are concerned that reports of migrants being released into the U.S. in lieu of Title 42 could further encourage migration.”

It is unclear in context whether the “some” referenced are in the administration or not, but the use of the conditional “could” in that statement is misplaced: The administration’s failure to detain illegal migrants is the main reason why illegal entries set new records in FY 2021, and will likely do so in FY 2022 regardless of what happens with Title 42, too.

That is simple logic. The only reason foreign nationals leave their homes and enter the United States illegally is to live and work in this country. When DHS releases them, that is exactly what they get to do, and when those releases run into the tens of thousands, it signals to their neighbors back home that they can come, too.

If that logic eludes you (or the unnamed “some”), consider this: A bipartisan federal panel of experts convened to examine a then-ongoing surge of migrant families (FMUs, or “family units”) and children reported in April 2019 that: “By far, the major ‘pull factor’” driving illegal migration by FMUs “is the current practice of releasing with a NTA” — the charging document in removal proceedings — “most illegal migrants who bring a child with them.”

Detention space for illegal migrants is limited (the Biden administration attempted to cut ICE detention beds in its FY 2022 budget request, but Congress refused to make those cuts in its recent Omnibus budget bill), so if the expected surge materializes (which it will when Title 42 goes away), CBP will either have to quickly remove those aliens or release most of them.

The Biden administration has not robustly utilized its expedited removal authority thus far, and there is little reason to believe that it will start doing so even in the face of a surge of two to three million aliens in FY 2022.

The Power of Politics. The one thing that may force its hand, however, is politics. An October Quinnipiac poll conducted shortly after the “Del Rio” debacle showed that just 23 percent of respondents approved of Biden’s handling of the border, compared to 67 percent who disapproved.

The president’s numbers were worse among Independents, crucial swing voters in mid-term elections — like the one in November for the House and Senate. Just 18 percent of the unaffiliated approved of Biden’s handling of the border, compared to 73 percent who disapproved.

The migrant surge that will likely follow the lifting of the CDC’s Title 42 orders could replicate scenes like those in “Del Rio” in September across much of the Southwest border. That would tank Biden’s already anemic approval ratings, and further imperil Democrats’ attempts to keep control of Congress.

Probably Not Much Biden Can Do — Except a Policy Shift. That said, there is likely little that Biden can do at this late date to fix his border problems or forestall a massive surge of migrants. Biden’s release of illegal migrants has encouraged even more to come, effectively “breaking” border enforcement. The only thing that will stem the tide at this point is more detention space, but for now, the president is stuck with the detention beds he has.

That said, the omnibus spending bill appears to give ICE flexibility to reallocate ("reprogram") funding to its Operations and Support account “to ensure the detention of aliens prioritized for removal”, which would include illegal migrants.

One thing that the president could do, however, is to announce a major immigration policy shift, as Trump did in 2019 when he implemented the Migrant Protection Protocols (MPP, better known as “Remain in Mexico”).

MPP allowed CBP to return illegal migrants back across the border to await their removal hearings, effectively preventing them from living and working in the United States indefinitely while they were applying for asylum. MPP worked, and illegal entries plummeted.

Despite this success, Biden’s DHS has attempted to scrap Remain in Mexico, but the courts stepped in and prevented it from doing so; the Supreme Court will hear the administration’s challenge to that order on April 26. In the interim, the president has begrudgingly made a half-hearted attempt to comply with the court’s order.

The political fall-out of two to three million illegal migrants at the Southwest border may, though, prompt Biden to rethink his objections to MPP. It’s much cheaper than detention in the United States, and as DHS found in its October 2019 assessment of the program, MPP both discourages illegal migration and speeds along asylum cases while deterring weak and fraudulent protection claims.

Even though a border policy shift would allow agents to secure the border and give the president a polling boost, Biden is very unlikely to change course at this point. Instead, after Title 42 expires, DHS will likely flood the border with resources and “volunteers” while doing what the president has already told it to do: Release untold numbers of illegal migrants into the United States.