Migrant surges hint at chaos at US-Mexico border once Title 42 expires

More than 1,500 undocumented people hurried across the US-Mexico border into west Texas all at once last weekend, surprising the city of El Paso, which is no stranger to dealing with migration.

The group included many Nicaraguans, who said they were freed by Mexican authorities after being kidnapped last week.

The sudden rush of families, in particular, wading across the Rio Grande, trying to hold their minimal luggage and children up out of the water, came after a difficult few months for all parties at the border amid fluctuating policy and confusing messages from the Biden administration.

Next Wednesday, restrictions implemented by former president Donald Trump at the start of the coronavirus pandemic that have blocked hundreds of thousands of migrants are to end.

This follows a federal court ruling that the restriction, known as Title 42 after the relevant portion of US federal public health code, is unlawful.

If the restrictions are indeed lifted, there will probably be additional surges of people entering the US after being stuck south of the border with an attendant escalation of chaos, at least temporarily. This will be a challenge for the migrants in personal terms, after what they have already been through to reach and then wait at the border, and for Joe Biden in political terms, as many fellow Democrats fret with frustration and Republicans, who refuse to cooperate on immigration reforms via Congress, make yet more hay.

But the long legal wrangling over Title 42 could yet delay this timeline once again. So what is Title 42 and what is happening at the border?

Blocking the border

In March 2020, US health authorities issued an order, known as Title 42, that allows federal border agents to expel migrants crossing the US-Mexico border back to Mexico or other countries. It was brought about to stem the spread of Covid but was kept in effect long after vaccines were distributed and the pandemic ebbed. It was just one of Trump’s hardline anti-immigration measures.

Many critics have bitterly denounced the order, arguing it unlawfully prevents migrants from claiming asylum, while the US immigration system is inhumane and counterproductive. It also subjects migrants to greater hardship and horrendous hazards. Vulnerable migrants are preyed on by organized criminals in Mexico who kidnap, extort, rob and rape them, while blocked border crossings push them to risk death by drowning and injury from climbing border barriers or from exposure to the heat of the desert or suffocation in a smuggler’s airless vehicle during dangerous clandestine crossings. Supporters of the hardline policy say it suppresses migration into the US. But it has been an especially deadly year at the border.

Title 42 and Biden

Joe Biden campaigned on a promise to reverse Trump’s restrictive asylum policies.

However, he left the Title 42 rule in place for more than a year, exempting unaccompanied children but allowing US authorities to send hundreds of thousands of other migrants, including families, back to Mexico.

There have been record numbers of apprehensions at the border, and many migrants try to cross again and again after being expelled to Mexico. It has caused operational and political problems for the administration, which says the immigration legal system has long been “broken”. There have been tragic and brutal scenes.

Mexico accepts Mexicans, Guatemalans, Salvadorans, Hondurans and Venezuelans expelled back across the border under Title 42, but other nationalities are generally let into the US to pursue their immigration cases.

This week, a large group of about 1,500 migrants lined up at the border near El Paso, Texas, waiting to be processed.

Mario D’Agostino, El Paso’s deputy city manager, told reporters on Tuesday that the arrivals were “unsustainable” and that the city had asked the Biden administration to consider processing migrants at military bases or increasing flights to move migrants to other parts of the border.

A US Department of Homeland Security spokesperson said the department is “working according to plan to quickly decompress the El Paso area”.

People are variously fleeing political oppression, gang violence, deepening poverty, the climate crisis, failed states and war – sometimes several of these situations at the same time.

What’s next?

The Centers for Disease Control and Prevention announced in April that it would end Title 42, saying it was no longer needed as a health measure.

But a federal judge in Louisiana blocked the termination after a legal challenge brought by a group of two dozen states with Republican attorneys general, who argued that increased migration would saddle their states with costs.

In a separate lawsuit, brought by the American Civil Liberties Union and other groups on behalf of migrant families who argue they were harmed by Title 42, a Washington DC-based judge struck down the rule as unlawful on 15 November, and gave the government until 21 December to prepare.

Then a coalition of Republican state attorneys general sought to intervene. In arguments similar to those made in the Louisiana case, the states said that ending Title 42 would “cause an enormous disaster at the border” and leave them shouldering the cost of services for new arrivals.

If the court of appeals for the DC circuit denies the states’ motion, they could appeal the matter to the US supreme court, which has a rightwing supermajority.

What did Biden do then?

The Biden administration stuck with the 21 December termination of Title 42 but nevertheless appealed the DC court decision so as to be able to use public health rules such as Title 42 in future.

And the government is discussing other measures to “secure” the border, such as barring single adults from seeking asylum there and accelerated asylum screenings in border patrol custody.

The Biden administration also said it will increase the use of expedited removal, a fast-track deportation process, if Title 42 is terminated. Those ejected under Title 42 were summarily expelled, not deported.

Those plans will probably go on hold if the various states’ latest effort to keep Title 42 in place succeeds.


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