Title 42 Reportedly to End May 23

Expect the Biden administration to try to hide the scope of the disaster that will ensue

By Andrew R. Arthur on March 31, 2022

Multiple media outlets report that CDC orders directing the expulsion of aliens who have entered illegally in response to the Covid-19 pandemic will end on May 23. Expect DHS to flounder in responding to the massive surge of illegal migrants who will follow in the wake of Title 42’s termination, but also expect the Biden administration to try to hide the scope of the disaster that will ensue.

Brief Background on Title 42. The first Title 42 order was issued in late March 2020, when the government realized that it would not be able to contain the novel coronavirus abroad. That followed a March 20 announcement by then-President Trump, who explained that the government would:

[E]xpeditiously return aliens who cross between ports of entry or are otherwise not allowed to enter the country, as the facilities in which these aliens would normally be held cannot support quarantine for the time needed to assess potential cases.

In May 2020, those CDC orders were expanded to apply to aliens stopped at coastal ports of entry and on waterways into the United States. A subsequent Title 42 order was issued in October 2020.

In November 2020, the U.S. District Court for the District of Columbia issued an injunction in which it held that unaccompanied alien children (UACs) were being improperly expelled under Title 42. That injunction was stayed, however by the U.S. Court of Appeals for the District of Columbia on January 29, 2021, nine days after President Biden’s inauguration, though evidence suggests the new administration had directed Border Patrol not to expel UACs under Title 42 on January 30.

Seemingly blessing this state of affairs, on February 17, 2021, CDC published a notice stating it had “decided to exercise its discretion to temporarily except from expulsion [UACs] encountered in the United States pending the outcome of its forthcoming public health reassessment of the Order.”

In August 2021, CDC issued a new Title 42 order that replaced and superseded that October 13 one. It also exempted UACs and included other exceptions “for individuals on a case-by-case basis, based on the totality of the circumstances” (undefined), as well as “for programs approved by [DHS] that incorporate appropriate COVID-19 mitigation protocols as recommended by CDC”.

The exception for UACs was challenged by state plaintiffs, and on March 4, 2022, Judge Mark Pittman of the U.S. District Court for the Northern District of Texas issued an order blocking that UAC exception. Eight days later, CDC issued a new order again excepting UACs from Title 42.

Expulsions Under Title 42. At the outset, nearly all aliens “encountered” by CBP at the Southwest border (illegal migrants caught by Border Patrol and aliens without documents stopped at the ports there by CBP officers) were expelled under Title 42.

Of the nearly 518,500 aliens encountered at the U.S.-Mexico line between April 2020 and January 2021, nearly 459,600 (88.6 percent) were expelled under Title 42. That changed, however, after Biden took office.

CBP has encountered close to 2.277 million aliens since February 2021. Of that number, just over 1,246,600 (54.75 percent) have been expelled under the CDC’s orders; the remaining 1.03 million-plus were processed under the Immigration and Nationality Act (INA), and an untold number have been released into the United States.

The CDC orders are clear that they are public-health related and not intended for border control, per se. Not that, when those orders were first issued in March 2020, much border control was necessary.

After a high of 144,116 Southwest border encounters in May 2019, the Trump administration managed to get illegal immigration at the Southwest border under control. By September 2019, CBP encounters dropped to just short of 55,550 (a decline of more than 63 percent) and continued to decline to 36,687 by February 2020 — the month before the pandemic.

Why did that decline occur? As I explained in February 2020, it was largely due to several policies that the Trump administration had implemented to deter illegal entrants.

Not least of these was the Migrant Protection Protocols (MPP, better known as “Remain in Mexico”), under which aliens encountered at the Southwest border were sent back across the line to await their removal hearings.

The Biden administration quickly moved to terminate most of those policies — including MPP. The president’s rescission of MPP, however, has been hampered by court orders who have held that — absent MPP — Biden has no plan to comply with statutory mandates directing that illegal migrants stopped at the border be detained.

The Supreme Court will hear the government’s appeal of those MPP orders in late April, in a case that I have described as the “Most Significant Immigration Case — Ever”. That’s because without some judicial intervention, the president will simply blow through the limits that Congress has placed on immigration to the United States.

The one quasi-border control measure that Biden has kept has been Title 42 — which as I noted is not a border control measure at all. Members of Congress have begged the president to keep Title 42 lest the chaos at the border gets worse, but all of that appears to be for naught. If the press reports are correct, there will be no Title 42 come May 23.

How Biden Will Try to Cover Up the Coming Border Onslaught. Get ready for one of the greatest cons in immigration history.

DHS is expecting upwards of 18,000 illegal migrants per day at the Southwest border after Title 42 ends. Not surprisingly, the administration is attempting to manage the chaos but has no real plan to stop aliens from entering the United States illegally.

DHS will be sending the Federal Emergency Management Administration (“FEMA”, the definition of “disaster”) to the border to help out, and is soliciting “volunteers” from outside CBP to go there and pitch in. Even if many step forward to assist CBP in the heat of a south Texas (or Sonoran Desert) summer, there is little that they will be able to do aside from making the migrants’ lives more comfortable.

DHS has posted what it refers to as its “Preparations for a Potential Increase in Migration”, detailing its plans. Those include “Increasing CBP temporary holding capacity to process high volumes of individuals in a humane manner.”

Note the use of the word “temporary” in that phrase. Illegal migrants are supposed to be detained, from the time they are apprehended to when they are either removed or granted immigration status (usually asylum). “Temporary detention” does not fit into that calculus, which makes sense given that the Biden administration has honored Congress’s detention mandate more in the breach than in the observance.

Which brings me to what the Biden administration really intends to do, falling under the heading in the DHS document: “Delivering a more efficient and fair immigration process.” The department explains:

On March 24, 2022, DHS and the Department of Justice issued a rule to improve and expedite processing of asylum claims made by recently arriving [aliens], which provides for the expeditious granting of relief to those who have valid claims for asylum and prompt removal of those whose claims are denied. Once implemented at scale in the coming months, the rule will transform how cases are processed at the border.

“Transform” is an understatement: My colleague Rob Law and I wrote about the significant downsides of that rule on March 24. Briefly, under current law (that rule does not go into effect until May 31), DHS can remove illegal migrants apprehended at the border without placing them into removal proceedings before an immigration judge (IJ) under a procedure called “expedited removal”.

If, however, the alien requests asylum or asserts a fear of harm if returned, the alien is sent to a USCIS asylum officer (AO) to determine whether the alien has a “credible fear”.

If the alien is found to have a credible fear (and 83 percent of all aliens who made such claims between FY 2008 and the fourth quarter of FY 2019 were determined to meet the standard), they are placed into removal proceedings to seek asylum from an IJ.

The rule changes that process by allowing aliens who pass the credible fear screen to seek asylum directly from the AO, no fewer than 21 days after the AO has conducted the credible fear interview.

If the AO denies asylum, the alien can then seek review of that decision from an IJ; if the IJ also denies asylum, the alien can seek review of that decision from the Board of Immigration Appeals (BIA); and if the BIA issues yet a third denial, the alien can file a petition for review in federal circuit court.

Only in Washington can a rule that provides an additional layer of needless review be referred to as “expedited”, but needless to say, that 21-day period will make it impossible for DHS to detain hardly any of those aliens if even a fraction of illegal migrants get smart and claim credible fear. ICE only has 34,000 detention beds on any given day — total — and so you can do the math.

How likely is it that the AO, however, will deny asylum? In the Center’s response to the proposal for that rule, we explained that an AO would be much less likely than an IJ to do so, but consider the fact that the business-friendly (read: pro-cheap-labor) Wall Street Journal puts it this way:

Under the new procedure, asylum seekers would first have their cases heard by an asylum officer, a process that is considered friendlier than court because it isn’t a full trial with government lawyers arguing against the applicant. Officers would be given roughly 90 days to consider a case and reach a decision. [Emphasis added.]

“Friendlier” for the migrants — not for the American people or the interests of justice. The Journal could have added that unlike in removal proceedings before an IJ, there also won’t be any “government lawyers” to appeal the AO’s decision, either — rendering the AO’s decision virtually final, so long as it is an asylum grant.

Thus, the Biden administration will contend, there is no resultant “chaos”, no “calamity”, no “Biden border disaster” when Title 42 ends and 18,000 migrants enter the United States illegally, daily. Most will now be rebranded “asylum seekers”, and under the way that DHS has rigged the game, they will be “asylum grantees” and placed on a path to citizenship.

By the way, did you notice the timing of the Title 42 termination? May 23 is eight days before that rule is scheduled to go into effect on May 31 — meaning that aliens found to have credible fear will have just less than two weeks to wait before the AO considers their asylum applications.

If not for the vulnerability that this scheme poses to our national security, I would deem it brilliant. Border security is national security, however, and nothing about what the Biden administration is planning takes border or national security into account.

This will be great for the upward of 18,000 aliens who will enter the United States daily after Title 42 ends. For you? Not so much. That assumes, however, that the president is allowed to get away with this plan — and that verdict will be handed down in the federal courts, and ultimately in the court of public opinion.