Bipartisan lawmakers call on Biden to extend Title 42

Two Republicans and two conservative Democrats called on President Biden to extend Title 42, a border management policy first enacted by former President Trump that’s been declared unlawful by a federal judge.

In a letter to Biden, Sens. John Cornyn (R-Texas) and Joe Manchin (D-W.V.) and Texas Reps. Tony Gonzales (R) and Henry Cuéllar (D) laid blame on the administration for conditions at the border.

“We have a crisis at our southern border. Never before in our nation’s history have we experienced this scope and scale of illegal border crossings, and we remain concerned that your administration has not provided sufficient support or resources to the men and women of the Department of Homeland Security (DHS) who are tasked with maintaining border security,” they wrote.

The lawmakers added they are engaged in negotiations to enact “legislation that will allow DHS to effectively implement policies and programs that have been revealed as critical to maintaining operational control over the southern border, and do not involve paroling large numbers of migrants into the United States to undergo months- or years-long processes.”

But the lawmakers admitted such negotiations would take time.

“In the interim, we urge you to do everything within your power to extend the Centers for Disease Control and Prevention (CDC’s) Title 42 order beyond the looming December 21st deadline until Congress can act.”

Title 42 has been controversial from its onset, as it used pandemic-era fears to essentially gut the asylum system.

The policy’s legal base was a CDC order that allowed border officials to turn away migrants for fear they could introduce coronavirus into the United States. That legal scaffolding was later revealed to have been imposed upon the CDC by Trump administration advisor Stephen Miller.

Still, the Biden administration has defended Title 42, first publicly touting its public health considerations, even as medical and border experts derided those justifications as verifiably false.

Though the CDC lifted its public health order in April, the Biden administration has continued to defend Title 42, arguing that lifting it would essentially invite more migrants to attempt to cross into the United States.

While border authorities continue to use Title 42 to quickly expel many migrants without granting their right to claim asylum, the policy is not applicable for Cuban and Nicaraguan nationals, and only partially for Venezuelans.

“Based on recent court filings, DHS is almost completely reliant on Title 42 to control migration from Mexico and the Northern Triangle: the vast majority of Mexicans, Guatemalans, Hondurans, and Salvadorans encountered by U.S. Border Patrol along the border in October 2022 were expelled under Title 42 rather than processed under Title 8,” wrote the lawmakers.

While immigration from Mexico and the so-called Northern Triangle – Guatemala, Honduras and El Salvador – remains high, the most substantial change in regional migration patterns post-pandemic has been the four-way mass migration out of Cuba, Nicaragua, Venezuela and Haiti.

Of those countries, only Haiti accepts Title 42 repatriations, and the Biden administration struck a deal with Mexico to receive up to 24,000 Venezuelans under the policy.

The biggest changes in regional migration patterns have come with Title 42 already in place, in large part because of political and economic crises in those countries that were aggravated by the pandemic and other factors.

Still, the lawmakers called Title 42 “our only effective tool for controlling unlawful migration,” warning that given “the expectation of its imminent rescission—pressure will continue to build on the southern border.”

But the Biden administration is running out of time to either return to regular processing of migrants known as Title 8 or to propose an alternative to Title 42.

The Trump-era policy will end on Dec. 21, as ordered by Judge Emmet Sullivan in November, forcing border officials to process all eligible migrants who claim asylum.

That change, the lawmakers said, could further overwhelm border officials and infrastructure.

“While we appreciate that DHS sought a stay of Judge Sullivan’s decision in order to facilitate a transition period, a mere five weeks is completely inadequate to prepare for a massive influx of migrants when the infrastructure and policies are not in place to expeditiously remove those with invalid claims for asylum or other forms of relief,” they wrote.

The immediate solution, the lawmakers reiterated, is to empower border officials to summarily expel migrants.

“We are also concerned that aside from filing a notice of appeal weeks after Judge Sullivan’s decision, DHS has not outlined a viable plan to maintain operational control of the southern border. This situation is untenable, and we must work together to keep in place DHS’s authority to quickly expel migrants until an acceptable set of alternative policies and resources is put into place.”

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