A federal appeals court on Friday rejected a bid by several Republican-led states to keep the so-called Title 42 rule in force, after a district court struck the controversial Trump-era border policy down.
The new ruling from the DC Circuit US Court of Appeals sets the stage for the case to go to the Supreme Court. The Biden administration is set to stop enforcing Title 42 – which allows for the expulsion of migrants at the US-Mexico border – on Wednesday.
The Republican-led states previously indicated that if the appeals court ruled against them, they’d seek the intervention of the Supreme Court.
In the new order, the DC Circuit denied the states’ request to intervene in the case and dismissed as moot the states’ request that it put the lower court’s ruling on hold.
The unsigned order was handed down by a circuit panel made up of an Obama appointee, a Trump appointee and a Biden appointee.
They wrote that the “inordinate and unexplained untimeliness” of the states’ request to get involved in the case “weighs decisively against intervention.”
The case is a lawsuit the American Civil Liberties Union, representing several migrants brought In January 2021 challenging the program. The appeals court noted on Friday that the Republican-led states had long known that their interest in keeping the policy in force would diverge from the Biden administration’s approach to the case.
The appeals court wrote that “more than eight months ago, the federal government issued an order terminating the Title 42 policy.”
“Yet these long-known-about differing interests in preserving Title 42—a decision of indisputable consequence—are the only reasons the States now provide for wanting to intervene for the first time on appeal,” the DC Circuit said. “Nowhere in their papers do they explain why they waited eight to fourteen months to move to intervene.”
The ACLU attorney representing the migrants praised the court’s decision.
“The states are clearly and wrongly trying to use Title 42 to restrict asylum and not for the law’s intended public health purposes,” the attorney, Lee Gelernt, told CNN in an email. “Many of these states were vigorously opposed to past COVID restrictions but suddenly believe there is a need for restrictions when it comes to migrants fleeing danger.”
White House spokesperson Abdullah Hasan said after the ruling that the administration has a “robust effort underway” for managing the border following the policy’s expected lifting next week.
“To be clear: the lifting of the Title 42 public health order does not mean the border is open. Anyone who suggests otherwise is doing the work of smugglers spreading misinformation to make a quick buck off of vulnerable migrants,” Hasan said in a statement. “We will continue to fully enforce our immigration laws and work to expand legal pathways for migration while discouraging disorderly and unsafe migration. We have a robust effort underway to manage the border in a safe, orderly, and humane way when Title 42 lifts as required by court order.”
The “Anyone who suggests otherwise is doing the work of smugglers spreading misinformation to make a quick buck off of vulnerable migrants,” is Gov. Greg Abbott of Texas. ABC host corners Greg Abbott: Biden has never said the border is open but you and Trump have:
ABC host Martha Raddatz asked Texas Gov. Greg Abbott (R) if his rhetoric was leading migrants to believe the U.S. border is open.
“You talk about the border wall, you talk about open borders, I don’t think I’ve ever heard President Biden say, we have an open border come on over,” Raddatz said during an interview that aired on Sunday.
“But people I have heard say it are you, are former President Trump, Ron DeSantis, that message reverberates in Mexico and beyond. So they do get the message that it is an open border and smugglers use all those kinds of statements,” she added.
We need more of this from reporters holding Republicans accountable for their anti-immigrant fear mongering and racist rhetoric.
Instead, The Arizona Republic fka The Arizona Republican amplifies the Fox News racist fear mongering about immigrant “caravans” that will be “invading” the United States after Wednesday. Title 42’s end could spark new wave of asylum seekers from Mexico, Central America:
The end of Title 42 is expected to trigger a large wave of asylum seekers into the U.S. who have been waiting in border communities in Mexico for the emergency pandemic-related restrictions to be lifted.
Hundreds of asylum seekers have already crossed the Rio Grande into El Paso, Texas, in recent days in anticipation of Dec. 21, when the Biden administration under court order is scheduled to stop expelling large numbers of migrants to Mexico and instead allow those who might qualify for asylum to enter the U.S.
But the end of Title 42, a public health rule implemented under the Trump administration in 2021 ostensibly to prevent the spread of COVID-19, could also spur a new wave of migrants to leave their home countries to seek asylum in the U.S., experts say.
Title 42 has mainly been applied to migrants from Mexico, the Central American countries of Guatemala, El Salvador and Honduras, and more recently migrants from Venezuela. As a result, the number of migrants arriving at the southern border from those countries fell sharply.
The end of Title 42, however, could signal that the border is again open and more migrants from those countries could attempt to reach the U.S. border.
“I think there’s likely a population of people that are from Guatemala, El Salvador, Honduras and even Mexico that have been trying to wait it out,” said Maureen Meyer, vice president of programs for the Washington Office on Latin America, a human rights organization that opposes the use of Title 42 to expel migrants.
Many migrants in Mexico
Some of those who may seek to come to the U.S. are currently stuck in Mexico because the U.S. border was closed while others have been waiting in their home countries for the chance to seek asylum in the U.S., Meyer said.
“And so I think there’s people that would likely try to come now because they view the U.S. border as being open to asylum seekers,” Meyer said.
In October, the Biden administration also began expelling to Mexico migrants from Venezuela who entered illegally under a new agreement with Mexico in an attempt to manage a surge of migrants fleeing a humanitarian and economic crisis in Venezuela. At the time, there were thousands of migrants from Venezuela in transit to the U.S.
“A lot of that population continues to be sort of stuck somewhere between the Darien Gap (between Colombia and Panama) and elsewhere and the US-Mexico border. And so I think you also have a population that’s, quite frankly, just waiting it out for their chance to see if the U.S. border is going to be open to them, and you’ll likely see, if it is the case, that more people will come,” Meyer said.
It’s possible, however, that many of the migrants who decide to come to the United States once Title 42 restrictions are lifted may not make it, Meyer said.
That is because Mexico has significantly increased immigration enforcement in the interior of Mexico.
Mexico has apprehended more than 345,000 migrants without documents through October this year, according to data from the National Migration Institute, Mexico’s immigration enforcement agency.
In October, the most recent month data is available, immigration enforcement authorities in Mexico apprehended more than 52,000 migrants.
“In past years, that’s sometimes the entire number for the year,” Meyer said. “Mexico is certainly increasing its enforcement.”
The Mexican immigration enforcement agency’s Twitter account is filled with pictures of officials stopping and detaining migrants along roads and highways headed for the U.S., Meyer said.
A Twitter post on Dec. 13, for example, shows immigration authorities stopping a passenger bus in the central Mexican state of Tlaxcala and apprehending 47 migrants from other countries who did not have authorization to be in Mexico.
Mexico also has been preparing for an influx of migrants, Meyer said. The government recently opened a provisional center in the southern state of Chiapas to process migrants and provide them with transit visas allowing them to travel through Mexico legally.
It’s possible, however, that Mexico could be preparing to further clamp down on migration between its borders in cooperation with the United States, once Title 42 ends, Meyer said.
Large caravans formed to get around authorities
At Mexico’s southern border with Guatemala, large numbers of migrants have been temporarily blocked from traveling through the country and have been living in shelters, makeshift camps and government facilities in Tapachula, a city in the state of Chiapas near the border with Guatemala.
Already groups of migrants frustrated by the inability to move north have formed large caravans of a thousand or more people to try and reach the United States. Such large groups are difficult for immigration authorities to stop. But more recently large caravans have been broken up by Mexico before reaching the northern border with the U.S. It’s possible more caravans could form if more migrants from other countries pour into southern Mexico and are unable to move north.
“If you are not allowed to leave Chiapas north, then your only other option is to move farther south, so if that continues, you might see again increased intensive caravans and protests of migrants,” Meyer said.
Smuggling activity may also increase, as frustrated migrants look for ways to evade immigration enforcement in Mexico, she said.
President Joe Biden is expected to travel to Mexico in January as part of a summit for North American leaders, and grappling with migration is expected to be a key topic of discussion, Meyer said.
“The overall request has always been, what else can Mexico do? Right? What else can you do to increase enforcement? What else can you do to receive asylum seekers and process asylum seekers in Mexico versus the United States?” Meyer said.
While the U.S. may want Mexico to further increase immigration enforcement in the wake of the termination of Title 42, that may be difficult, considering how powerful criminal smuggling organizations have become in Mexico, said David Bier, associate director of immigration studies at the Cato Institute, a libertarian think tank.
“It’s very difficult when (Mexico is) in a war with the cartels, and it’s only getting worse. The cartels have de facto control in many areas. So if they want people to get through, they’ll be able to get people through,” Bier said. “So from the U.S. perspective, I wouldn’t be banking on Mexico being the solution.”
“But I guarantee that the Biden administration sees them as a big part of the solution already and wants to continue that approach,” Bier said.
Bier doesn’t believe, however, that large caravans that may form in the wake of Title 42 will reach the U.S. border because Mexico will continue to break them up.
“They want to avoid the big PR nightmare [on Fox News 24/7] of having thousands of people marching through Mexico up to the border as a group,” Bier said.
CNN reports today, Biden administration finalizing its plans as it braces for end of Title 42:
The Biden administration is finalizing its plans, including a controversial asylum policy, ahead of the end of a Trump-era border restriction that’s set to expire in just days, according to officials familiar with the planning.
The plans could be announced within the coming day, officials said.
A surge of migrants at the US-Mexico border in recent days has already raised alarm among Democrats and Republicans, some of whom have called on the White House to find a way to extend the restrictions, and has placed immigration – a politically precarious issue – back at the forefront. The White House has said the administration is bound by a court order.
For weeks, the administration has been bracing for the end of the public health authority, known as Title 42, that was invoked at the onset of the coronavirus pandemic and allowed officials to turn away migrants encountered at the US southern border. The lifting of the authority means a return to traditional protocols at a time of mass migration in the Western Hemisphere, stressing already-overwhelmed resources.
Officials have been weighing policies to try to stem the flow of migrants heading to the US southern border. Among them is a proposal that would bar migrants from seeking asylum at the US-Mexico border if they could have received refuge in another country they passed through, mirroring Trump-era asylum limits. The proposal is being finalized and is expected to be announced this week prior to the lifting of Title 42.
The new rules are likely to generate outcry and legal challenges from immigration advocates, who have pushed for an end to Title 42. Enacting a version of a Trump-era asylum rule could also pose political challenges for Biden, who vowed to enact a more humane immigration policy than his predecessor.
A federal appeals court on Friday rejected a bid by several Republican-led states to keep Title 42 in force, setting the stage for the case to go to the Supreme Court. The Biden administration tried to wind down the Title 42 program earlier this year, but a coalition of mostly GOP-led states – in a separate case filed in Louisiana – successfully sued to block the Department of Homeland Security from ending enforcement.
Title 42 becomes a top White House concern
Inside the administration, the looming end of Title 42 has been a source of heightened concern, particularly as numbers of migrants attempting to cross the border increased in the days ahead of the order’s expiration. Biden has come under fire from border-state lawmakers for his handling of the matter. His advisers have convened meetings almost daily to weigh their options.
In formulating their plans, officials have sought ways to bring order to the situation at the border, where images of long lines and crowded holding facilities have generated outcry. Their goal has been to deter migrants from crossing illegally while still preserving their ability to legally apply for asylum.
Whether the new asylum policies can deter migrants from attempting to enter the US remains unclear. Large numbers of migrants have already arrived at the Mexico side of the border awaiting Title 42’s expiration. Administration officials have said many of them are being exploited by smugglers offering false promises related to the end of Title 42, and officials are doubtful those practices would be altered by new rules.
And economic and safety conditions in the countries the migrants are leaving remain unstable and have worsened since the coronavirus pandemic.
The Department of Homeland Security is actively monitoring intelligence to try to determine how many migrants are moving toward the US southern border and where they’re heading, though human smuggling organizations often influence pathways.
“It’s a cat and mouse game,” one senior Homeland Security official said.
An intelligence memo, from the Homeland Security Office of Intelligence and Analysis, circulated last week underscored the concern within the administration over an increase in arrivals, citing human smuggling organizations adjusting their methods and how migrants may shift their calculus.
On the US side of the border, officials have been striking contracts to move migrants to other border stations for processing to avoid overcrowded facilities, the senior DHS official said. The administration has also identified cities within the United States to move migrants for processing—an idea that’s long been considered among officials – but no decision has been made yet.
CNN reached out to DHS for comment.
In a document outlining border security preparedness, DHS broke down its six-pillar plan, which was released in the spring and has since been updated. It includes scaling up ground and air transportation capabilities to transport migrants for processing and remove them, leaning on a CBP One mobile application to process asylum seekers, and increasing referrals for prosecutions for repeat border crossers, the document said.
White House pushes back against criticism
The White House is pushing back on calls for the administration to find a way to extend the controversial public health authority.
“We have to follow the court order,” a White House official told CNN. “A court is requiring us to lift it on December 21. We are required to do it.”
Images from the border have raised alarm among elected officials, some of whom have publicly questioned the Biden administration’s readiness and preparations to handle the expected influx of people trying to enter the United States.
[T]he White House has insisted that the end of Title 42 does not mean that the US border will suddenly be open to all – and that there are existing processes in place to process the claims of asylum-seekers. The administration has also pointed to months-long work that the Department of Homeland Security has been doing to prepare for the increase in migrants arriving at the border, while also calling on Congress to approve extra funding that the administration has requested to manage the situation.
Over the weekend, a federal law enforcement source familiar with daily operations in South Texas told CNN that border authorities in the Rio Grande Valley have encountered between 900 and 1,200 migrants daily during the past two weeks.
Biden to discuss migration with Ecuadorian president
Migration in the Western Hemisphere will be discussed between Biden and Ecuadorian President Guillermo Lasso on Monday, according to a White House official, who stressed that Ecuador has been “setting an important example” on the issue.
The two leaders will also follow up on several issues discussed during this year’s Summit of the Americas, including an agreement to increase security cooperation to tackle drug-related gang violence, the official said.
Over the summer, against the backdrop of the Summit of the Americas, Biden announced a regional partnership to address mass migration in the Western Hemisphere. The agreement, dubbed the Los Angeles declaration, was signed onto by multiple Western Hemisphere nations.
Under the declaration, governments are expected to commit to expanding temporary worker programs, bolstering legal pathways like refugee resettlement and family reunification, providing support to countries hosting large migrant populations, and cracking down on human smuggling networks.
Biden and Lasso will revisit those efforts Monday, the official said.