How covid-era immigration restrictions work at the border

YUMA, ARIZONA- MAY 20: Immigrants cross through a gap in the U.S.-Mexico border barrier as others await processing by the U.S. Border Patrol on May 20, 2022 in Yuma, Arizona. Title 42, the controversial pandemic-era border policy enacted by former President Trump, which cites COVID-19 as the reason to rapidly expel asylum seekers at the U.S. border, was set to officially expire on May 23rd. A federal judge in Louisiana delivered a ruling today blocking the Biden administration from lifting Title 42. (Photo by Mario Tama/Getty Images) (Getty Images)
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The Biden administration's plan to lift covid-era border restrictions Monday has triggered a debate in which partisans tend to depict the policy known as Title 42 in sweeping terms.

Opponents of the policy, which applies to asylum seekers and migrants trying to enter the country without authorization, often describe the restrictions as a wholesale denial of access to U.S. asylum, while its defenders liken it to the only remaining enforcement tool to ward off "open borders" chaos.

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The way the policy actually works is far messier, U.S. Customs and Border Protection data show.

Republican attorneys general from 24 states have sued to block the administration from moving forward with its plan to lift Title 42, leaving its fate in the hands of U.S. District Judge Robert R. Summerhays, an appointee of former president Donald Trump.

Summerhays, who has said he will make a decision before Monday, issued a temporary restraining order last month stopping Biden officials from attempting to phase out the restrictions.

An injunction from Summerhays would probably preserve the status quo at the border. The policy is not a blanket prohibition on asylum, but rather one element in a patchwork U.S. enforcement system with varying rules depending on migrants' nationality, demographic grouping and where they cross.

During the Trump administration, the policy restrictions were applied to about 80 percent of all border crossers taken into CBP custody. But that share has fallen sharply under the Biden administration to roughly 55 percent - meaning nearly half of all migrants are processed under standard immigration rules, not Title 42.

Implemented at the start of the pandemic in March 2020, the Title 42 restrictions were meant to limit the spread of the coronavirus in Border Patrol stations, immigration jails and communities where migrants may be headed. Authorities have used the policy to carry out nearly 2 million "expulsions," returning migrants back across the border to Mexico or flying them to their home countries.

Asylum seekers who attempt to enter the United States the legal way, through official ports of entry, are blocked by the restrictions, leading to more risky, illegal crossings by migrants attempting to go over or around the border wall, wade across the Rio Grande or trek through the desert.

Biden promised during his campaign to create a humane immigration system and to restore asylum proceedings at the nation's borders. After he took office, immigrant advocacy groups and some Democrats pressed him to lift Title 42, questioning its public health necessity and calling it an unfair denial of asylum seekers' legal right to seek refuge from persecution in their home countries.

Biden officials kept the restrictions in place but began making exceptions: first for unaccompanied minors who arrive without a parent, then for others considered vulnerable, including pregnant women and other pregnant individuals as well as asylum seekers with medical conditions.

Other migrants were exempted from Title 42 for reasons largely outside the Biden administration's control: Mexican authorities limit the number of non-Mexicans they will accept, for instance, especially family groups, citing shelter capacity constraints in their border cities. The Mexican government also generally declines the return of migrants from non-Spanish-speaking countries outside the Western Hemisphere. Many such migrants have arrived in especially large numbers since President Biden took office.

While U.S. authorities can use Title 42 to repatriate migrants directly to their home countries on "expulsion flights," landing the airplanes requires cooperation from other governments. For example, asylum seekers and migrants from Nicaragua, Venezuela and Cuba are arriving in record levels, but strained U.S. relations with the leaders of those countries make expulsion flights difficult or impossible, so they are generally released in the United States.

The administration's plan to end the policy is likely to have little effect on migrants from those nations, because the policy rarely applies to them.

Instead, it has been overwhelmingly used by the Biden administration to turn back border-crossers from Mexico and Central America's Northern Triangle nations: Guatemala, Honduras and El Salvador.

Under normal immigration rules, adult migrants from those nations would face escalating enforcement "consequences" for illegally entering the United States, including potential criminal charges and jail time before deportation.

But Title 42 expulsions don't go onto migrants' immigration records, essentially allowing them to try again and again. DHS argues it can reduce these repeat crossing attempts - and the border numbers overall - by restoring the "consequence delivery system" authorities have used for years to deter illegal migration.

On Tuesday, Department of Homeland Security Secretary Alejandro Mayorkas toured border facilities in South Texas, where authorities have prepared for larger migration surge after the restrictions are lifted. The Biden administration is planning to crack down on repeat offenders once the policy is out of the way, Mayorkas said.

"We will be increasing the number of criminal prosecutions to meet the challenge, because the fact is there are more cases that warrant criminal prosecution than cases that are being brought," he told reporters. "We are a nation of immigrants, but we are also a nation of laws."

Mayorkas has long insisted Title 42 is a Centers for Disease Control and Prevention order, not an immigration policy.

Chelsea Sachau, an attorney with the Florence Project, which provides legal aid to asylum seekers in southern Arizona, said the restrictions have become a "border enforcement mechanism disguising itself as a public health policy."

Sachau said many of her clients are asylum seekers fleeing "war-zone" conditions from parts of southern Mexico devastated by drug cartel violence. "The problem with Title 42 is they're not even being given a chance to be heard," she said.

Other groups, most recently thousands of Ukrainian refugees, are exempted. "The disparate treatment on the ground leads to feeling of arbitrariness," she said. "You can't explain it to people fleeing harm."

Chad Wolf, who was acting DHS Secretary when Trump implemented Title 42, said the Biden administration has created too many exemptions, undermining their argument that the restrictions are useful to prevent the spread of the coronavirus.

"They insist it's a public health authority, not an immigration enforcement tool. But if you exempt minors and family groups and Ukrainians and others, you are deciding who comes in and who doesn't - and that's an immigration policy," he said.

The uneven application of the policy has been notable in the administration's treatment of Haitian migrants and asylum seekers. When they began crossing the border en masse to Del Rio, Tex., last September, the Biden administration used Title 42 to send planeloads of Haitians back to their homeland.

The number of Haitians attempting to enter the United States fell by more than 90 percent, with thousands turning back to Mexico or hunkering down in border cities to wait for the policy to end. More Haitians have been crossing again in recent weeks, CBP figures show, and DHS has once more responded by ramping up expulsion flights.

The Biden administration has developed a six-part plan to prepare for border crossings to increase from their current record levels - roughly 7,000 to 8,000 migrants per day - to as many as 18,000.

Still unclear is to what extent Biden officials will be able to expand asylum access at official ports of entry. Before the pandemic, CBP limited the number of asylum seekers who were allowed to approach the official crossings because the volume of applications regularly exceeded staffing and space limitations.

Biden's plan to lift Title 42 was developed when the number of new covid cases in the United States was far lower, said Rodolfo Karisch, a retired Border Patrol official who ran the agency's busy Rio Grande Valley sector during the Trump administration.

"We are struggling in this country with covid numbers right now. So is this a prudent time to do away with it?" Karisch said.

"I know it has to end at some time, but I question whether this is right time to do it," he said.

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The Washington Post's Maria Sacchetti contributed to this report.

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