With Supreme Court halt, controversial Title 42 is now in limbo — but still in effect at the border

(WASHINGTON) — A Supreme Court decision on Wednesday halted the looming rollback of the immigration restriction known as Title 42, preserving a controversial status quo at the southern border, which has seen record numbers of migrant encounters.

The Title 42 restriction, which began during the Trump administration in the early days of COVID-19, was continued by the Biden administration and allows for the quick expulsion of migrants with the stated purpose of curbing the pandemic. It has been used more than 2 million times.

While the Centers for Disease Control and Prevention had tried to end the policy earlier this year — and was blocked by a judge — a separate court ruling set a Dec. 21 expiration date for Title 42, finding it “arbitrary and capricious,” with minimal public health impact.

Human rights advocates argue Title 42 illegally prevents people from seeking asylum.

The Supreme Court on Wednesday, however, continued an initial stay it issued in the matter, pending a February hearing as 19 mostly Republican-led states seek to keep Title 42 in place.

The court is looking at a procedural issue rather than the merits of Title 42 itself.

“As required by today’s Supreme Court order, the Title 42 public health order will remain in effect and individuals who attempt to enter the United States unlawfully will continue to be expelled to Mexico or their home country,” the Department of Homeland Security said in a statement on Tuesday.

The department urged Congress to find a more permanent solution to the nation’s immigration system, which has been repeatedly taxed by the number of people seeking to enter the country.

President Joe Biden’s press secretary, Karine Jean-Pierre, said in a statement that “we will, of course, comply with the order and prepare for the Court’s review.” Jean-Pierre also called for another push for new immigration legislation, which has stalled in Congress in the past.

Biden administration officials including Homeland Security Secretary Alejandro Mayorkas have been grilled before by lawmakers over the approach to Title 42 — and preparation for it to eventually end — as Republicans claim Biden’s border policies are exacerbating the increase in immigration.

Rep. Jim Jordan, R-Ohio, tweeted this week that without Title 42, “it’s going to get even worse in 2023.”

Biden, for his part, told reporters on Tuesday that he felt like it was past time to scrap Title 42, calling it “overdue.”

DHS has said they stand ready to address what could be an influx of migrants once the policy is lifted. Border crossings in the past fiscal year have steadily risen, with U.S. Customs and Border Protection reporting that more than 233,000 migrants were apprehended along the southern border in November alone.

The agency said nearly 35% of those migrants come from Cuba and Nicaragua.

Some data around Title 42 suggests it actually contributes to increased migrant encounters because the people expelled under its policy are able to quickly try and cross back into the U.S.

The government has taken another view. Earlier this year, DHS said they believed that as many as 18,000 people could be processed along the southern border per day. Those predictions were underscored by an DHS bulletin obtained by ABC News earlier this month: The agency said “the reversal of the [Title 42] policy will likely increase migration flows immediately as migrants adapt to recent changes.”

The bulletin stated that officials will likely see an increase in Venezuelans.

“Although the number of Venezuelan migrants arriving at the US Southwest Border decreased after the mid-October US migration policy announcement, we expect migration flows to begin rising in response to the reversal of Title 42,” the bulletin stated.

The potential for another increase in migrants has prompted the agency to come up with what it called a six-point plan to address the situation at the border, if and when Title 42 is ultimately lifted.

Part of that plan includes surging resources, creating temporary structures and sending migrants to other ports of entry to get processed.

In El Paso, Texas, one of the country’s largest ports of entry along the southwest border, CBP has built one of those temporary structures near Highway 54. It will be able to temporarily hold 1,000 migrants and will provide additional processing capability, a CBP official said.

The official stressed that CBP does not hold migrants long-term but only as long as they need to identify and classify them before the next step in their immigration enforcement. This will be a temporary stop before migrants are turned over to Immigrations and Customs Enforcement officials, who will make a determination whether to keep them in ICE detention or give them some kind of parole until their next immigration hearing.

Shelters in El Paso continue to face the challenge of providing housing and resources to migrants coming through the city. Blake Barrow, an attorney and the executive director of the Rescue Mission of El Paso, said his shelter has been at capacity since September, but he thinks Title 42 is an “inappropriate” reason to expel migrants.

“Title 42 existed long before COVID-19 and it was designed to prevent some kind of disease from entering the United States,” said Barrow, referring to a part of U.S. law from which the policy takes its name. “We have a situation now that there is zero evidence that the immigrants coming in carry a greater percentage of COVID-19 from what we have in the regular American population. So it’s just there’s no logic behind it, it does not apply.”

City officials have also identified two vacant schools they’ll use as temporary shelters. At a press conference on Tuesday, Deputy City Manager Mario D’Agostino said he expects one school to be fully operational within the next two days, while the other will open at a later time.

“OEM is extremely grateful to City Manager Tommy Gonzalez and El Paso ISD Superintendent Diana Sayavedra for working together to address this growing humanitarian crisis and be able to welcome the migrants in a safe and humane manner,” said El Paso Emergency Management Coordinator Jorge Rodriguez. “We want to stress to the community that safety is of the utmost importance, and we will provide heightened security measures to care for migrants, staff, and the community.”