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Biden extends Title 42 expulsions amid record migrant crossings

People look towards the downtown El Paso and the US-Mexico border separating El Paso and Ciudad Juarez from Murchison Rogers Park along Scenic Drive at sunset.
Getty Images via CNN
People look towards the downtown El Paso and the US-Mexico border separating El Paso and Ciudad Juarez from Murchison Rogers Park along Scenic Drive at sunset.

WASHINGTON, DC — The Biden administration will extend a Trump-era border policy that allows for the swift expulsion of migrants encountered at the US-Mexico border indefinitely, the U.S. Centers for Disease Control and Prevention announced Monday, as tens of thousands of migrants continue to cross into the United States monthly.

The public health authority, known as Title 42, was invoked at the onset of the coronavirus pandemic and has been criticized by immigrant advocates, attorneys, and health experts who argue it has no health basis and puts migrants in harm’s way.

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Since its implementation, more than 940,000 migrants have been swiftly expelled at the US southern border, according to U.S. Customs and Border Protection.

The CDC said it will review the latest information relating to the pandemic and associated public health experts every 60 days.

In a court filing Monday afternoon, a senior Homeland Security official painted a dire picture of what would occur if the public health order were lifted, citing a migrant surge at the U.S.-Mexico border that’s overwhelmed facilities.

David Shahoulian, assistant secretary for border and immigration policy at the Department of Homeland Security, said in a declaration that the U.S. is encountering “record numbers” of migrants, including families.

According to preliminary data, CBP is likely to have encountered about 210,000 individuals in July. That includes an expected record number of unaccompanied children, more than 19,000. Children who cross the US-Mexico border alone are not subject to the policy.

“These encounter rates have strained DHS operations and caused border facilities to be filled beyond their normal operating capacity, impacting the ability to employ social distancing in these congregate settings. At the same time, DHS is also experiencing significantly increased rates of noncitizens testing positive for Covid-19,” the declaration reads, arguing that the risk has been increased as a result of the highly transmissible Covid-19 Delta variant.

The U.S. Border Patrol, which has been operating under Covid-19 adjusted capacity, is over capacity in seven of its nine southwest border sectors, according to the declaration.

Immigrant advocates resume lawsuit against Title 42

Earlier Monday, the American Civil Liberties Union, along with other immigrant advocacy groups, said it was going back to court over the continued use of the policy, marking an escalation between the organizations and the Biden administration.

“We gave the Biden administration seven months but now have no choice but to return to court given the danger families are facing and the absence of any plan to immediately end Title 42,” said ACLU’s Lee Gelernt, lead attorney in the litigation.

Monday’s court filings stem from a lawsuit filed in January when the ACLU and others challenged the Trump-era border policy on behalf of migrant families. The ACLU had also challenged subjecting unaccompanied children to the policy, though they are now exempt.

Since February, plaintiffs in the case concerning families have been in negotiations with the government. As part of the litigation, the ACLU has referred some families to be admitted to the United States. “We have gotten thousands of families to safety through the exemption process we negotiated but the goal was always to end the Title 42 policy, not minimize it,” Gelernt said Monday.

“The administration is choosing to treat refugees like political pawns, and so we are eager to return to court so we can end Title 42 for families once and for all,” said Noah Gottschalk, global policy lead for Oxfam America, in a statement. Oxfam America is among the groups challenging the order.

Tensions between pro-immigrant organizations and the administration bubbled up over recent weeks, as it became clear that the public health order would remain in effect after July despite an anticipated wind down.

Earlier this year, a handful of immigrant advocacy groups quietly agreed to work with the administration to identify vulnerable migrants in Mexico amid ongoing border restrictions. But they are now pulling out of that effort, which, they said, was intended to be temporary.

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