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Biden administration braces for tough end to Trump-era immigration rule

“Most people who have looked at the issue are of the opinion that any time Title 42 is lifted, it will create a major operational challenge,” said Doris Meissner, director of the U.S. immigration policy program at the Migration Policy Institute. . “The real question in my mind is, how quickly can proper procedures be restored and put in place so that this challenge is minimized?”

The termination of Title 42 will mark both the end of a contentious legal battle and the dawn of a new political battle, in which the administration’s migration policies will once again be tested. It’s been a thorny issue for the White House since the early days of the Biden presidency. But it could get even more complicated quite quickly.

Earlier this month, a Washington-based federal judge blocked the use of Title 42, a public health authority that border officials have used more than 2 million times during the Covid pandemic to deport claimant migrants. asylum, although many of them were repeated passages. The judge argued that its use no longer matches the state of the pandemic, in which vaccines and treatments are widely available and travel to the United States has increased dramatically. The Justice Department requested a five-week extension to “address resource and logistical issues,” and the judge agreed to push back the start date of his order to December 21.

An administration official, when asked about steps DHS is taking to prepare, pointed POLITICO to its “six-pillar plan” announced earlier this year, as well as its efforts to crack down on cartels and smuggling rings . The plan focuses on “increasing resources” – such as personnel, transport, medical support and facilities to support border agents – by strictly enforcing border laws, increasing the efficiency of customs processing and border protection and building the capacity of non-governmental organizations.

“As was the case before Title 42 went into effect and will remain so after, those encountered at the border and without a legal basis to remain in the United States will be subject to prompt deportation,” said another administration official in a statement. .

According to its response to the court, the administration plans to revert entirely to the procedures for handling migrants that the country has previously and historically outlined in Title 8. This would allow the government to expel from the country anyone unable to establish a legal basis – as an approved asylum claim. Mayorkas told lawmakers at a hearing last week that his department plans to make “increased use” of those expedited removal processes at the southern border.

In asking for a five-week delay, the DOJ said the Department of Homeland Security needed more time to find resources to prepare for the transition of processing from Title 42 to Title 8.

The lack of resources is likely related to the need for officers to screen and process the influx of asylum seekers, said Greg Chen, senior director of government relations for the American Immigration Lawyers Association. There is also great concern about immigration courts, which ended fiscal year 2022 with a backlog of 1.9 million cases, according to Transactional Records Access Clearinghouse, a nonpartisan research organization at the University of Syracuse.

And because of the unprecedented level of irregular migration ending up at the southern border, Chen said, the administration will need even more asylum officers, court personnel and other resources to support the system than it does. two years ago.

The Trump and Biden administrations appeared to be relying on Title 42 to limit the flow of migrants to the US-Mexico border for reasons having little to do with the spread of Covid.

But Republicans fought to keep order in place, while the White House Biden tried to end the program earlier this year, only to be blocked by a Louisiana-based federal judge acting in a lawsuit. brought by 24 Republican-led states.

Terminating the directive is expected to fuel GOP attacks, particularly in the House, where Republican Leader Kevin McCarthy has already called on Homeland Security Secretary Alejandro Mayorkas to resign.

But Biden also faces pressure from within his own ideological tent. Supporters have long called for an end to Title 42, arguing there was no rational basis for its use once pandemic fears subsided.

The end of politics is unlikely to mean the end of criticism. With an influx of people and a bogged down system, migrants could spend months in detention centers — another part of the system the administration is likely preparing, Chen said. These facilities have been criticized for dangerous overcrowding, health and sanitation issues, and impeded legal access.

Extending the use of detention to people arriving at the border is “very controversial”, Chen said. “It’s a system sorely lacking in adequate oversight to ensure people are treated humanely.”

Even given enough time, many of the resources sought require legislative action, Chen said. But the chances of Republicans and Democrats striking a deal are slim.

“We stand with our eyes wide open to the reality that, despite all the progress we’ve made, we continue to work within the confines of a decades-old broken immigration system that Republican officials refuse to allow us to fix. “one administration official told POLITICO.

Administration officials always knew Title 42 would end at some point, and preparations were underway, said Angela Kelley, who served as Mayorkas’ senior immigration adviser until May and is now Chief Advisor for Policy and Partnerships at the American Immigration Lawyers Association. Some of this planning is evident in the data.

Compared to 2021, fewer people this fiscal year were deported under Title 42, while the number of migrants allowed to have their asylum claims heard nearly doubled, possibly reflecting a transition to Title 42. 8. In September, 72,472 migrants at the southern border were expelled. under Title 42, while 135,125 were apprehended under Title 8, according to U.S. Customs and Border Protection data.

The administration also tried to speed up the processing of asylum applications. A new rule released by the department this spring gives asylum officers — not just judges — the power to determine who is eligible and who should be turned away. In the long run, it will lead to a faster and fairer asylum process, said Meissner, a former immigration commissioner. But this new process, too, is burdened with resource requirements and has so far only been applied to a small number of people.

Kelley predicts a rocky start on Dec. 21, but once the treatment is back up and running, she expects the pressure on the system to stabilize. Still, she warns, problems will plague the southern border given the current state of the immigration system, a President Joe Biden has promised to overhaul.

“It’s really like a Rubik’s cube. The day after title 42 is released, I think it will blur the different colors. And then over time the different sides will be the same color,” Kelley said. “But it will take time, and it will still be imperfect because our system needs to be modernized.”


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