Biden officials release new post-Title 42 plan amid bipartisan criticism

Facing bipartisan criticism over its decision to phase out a pandemic-related border expulsion rule known as Title 42, the Biden administration on Tuesday released updated plans describing how U.S. immigration authorities are preparing to deal with a potential spike in migrant arrivals once the Trump-era restrictions are lifted.

The 20-page memo issued by Homeland Security Secretary Alejandro Mayorkas is the most detailed plan the Biden administration has publicly released to outline the government’s preparations ahead of the May 23 termination of Title 42, which has alarmed Republicans and some Democrats.

Mayorkas’ memo outlined a six-part strategy: surging personnel and resources to the southern border; expanding migrant processing capacity; deportating, detaining or prosecuting some migrants; securing assistance from border organizations, cracking down on human smugglers and deterring migration across the Western Hemisphere.

One of the plan’s key components is the expansion of expedited removal, a fast-track deportation process created in 1996, to deport migrants who do not ask for humanitarian refuge or who fail initial asylum screenings. Officials said asylum-seekers fleeing violence will have access to humanitarian protection.

The updated Department of Homeland Security (DHS) plans could alleviate concerns from some Democrats who have implored the administration to develop an adequate border management strategy before ending Title 42, but the preparations could be hindered by a federal court order.

On Monday, a federal judge in Louisiana said he planned to issue a temporary restraining order blocking officials from winding down Title 42 before May 23. Republican-led states requested the order last week, saying DHS was already phasing out Title 42, including by placing more migrants in expedited removal.   

A senior administration official, who briefed reporters about the plan on the condition they not be named, confirmed Tuesday that the U.S. government “will comply with the court order,” but added, “we really disagree with the basic premise.” 

“When the Title 42 order is lifted, we intend to significantly expand the use of expedited removal through our Title 8 authorities and thereby impose long-term law enforcement consequences on those who seek to cross the border without a lawful basis to do so,” the official added. 

The official said it “really makes no sense to us” that the court would order DHS to halt expedited removal, arguing that a pause on phasing out Title 42 will prevent the department from “adequately preparing for the aggressive application of immigration law when the public health order expires.” 

The administration official said expedited removal would be used to deport some Central Americans back to their home countries, as opposed to expelling them to Mexico under Title 42, which could allow them to attempt to enter the U.S. illegally multiple times. 

The official said U.S. border authorities have started deporting repeat border-crossers under expedited removal, which banishes them from the U.S. for five years, and referring migrants who seek to evade capture to the Justice Department for criminal prosecution.

Tuesday’s plan also calls for the detention of migrant adults traveling without children. Administration officials have ruled out detaining migrant families with children, telling reporters Tuesday the practice started under President Barack Obama and expanded under President Donald Trump “is not a tool we are considering now.”

The planned expansion of expedited removal could be restricted by some countries’ refusal to accept U.S. deportations. An administration official said the U.S. is hoping to forge new repatriation collaboration agreements with certain countries that would cut red tape for carrying out deportations.

U.S. officials have historically struggled to return large numbers of migrants to certain countries like Cuba, Nicaragua and Venezuela due to strained relations with their respective governments. In March, a record 32,000 Cubans and 16,000 Nicaraguans entered U.S. border custody, according to CBP data.

Administration officials characterized last week’s diplomatic summit with Cuba as “productive,” and “the beginning of a good dialogue.” The U.S. delegation requested that Cuba once again accept Cuban deportees, while the U.S. agreed to restart immigrant visa processing in Havana, officials said.

The Biden administration is also asking countries that migrants transit through to help the U.S. reduce the number of arrivals to the Mexican border.

“We’re also asking that other countries step up and enforce their own immigration laws,” one senior administration official said. “We really feel as though we need true responsibility sharing. We can’t have countries, for instance, participating in controlled flow, where they’re just allowing individuals to cross through without normal adjudication.”

But negotiating with countries that boast rocky relationships with the U.S. could pose greater obstacles to the administration’s strategy. “It’s quite challenging in dealing with a country like Venezuela, where the diplomatic relations, if they exist at all, can be strained,” Mayorkas told CBS News last week. “And so we have to be practical here in addressing the realities.”

For its part, U.S. Customs and Border Protection (CBP) has currently stationed 23,000 agents along the southwest border, according to Tuesday’s memo, including 600 recently deployed personnel and law enforcement officers from across government agencies. 

“By May 23, we will be prepared to hold approximately 18,000 noncitizens in CBP custody at any given time, up from 13,000 at the beginning of 2021, and we have doubled our ability to transport noncitizens on a daily basis, with flexibility to increase further,” the memo reads. 

Attorney General Merrick Garland told lawmakers Tuesday that both the Bureau of Prisons and U.S. Marshals Service will contribute resources to the border mission.

“To be clear, we don’t do border patrolling,” Garland said, noting law enforcement under the purview of the Department of Justice is not trained for immigration enforcement. “But the Bureau of Prisons is going to make buses available for the transfers that Border Patrol needs assistance for. And the Marshall Service is going to be providing additional deputy U.S. Marshals to assist CBP at the border.”

The Defense Department, meanwhile, will provide “rapid contracting support for air and ground transportation,” according to a senior administration official, in addition to identifying potential locations for new temporary migrant holding facilities along the southwest border. 

Officials also noted the Department of National Intelligence is “coordinating intelligence gathering and helping to support and strengthen our capability to get an early warning of migrant surges as they are building.”

DHS plans to expand the distribution of “age-appropriate” COVID-19 vaccines to migrants at two dozen CBP sites by May 23, in addition to its existing vaccination program for those in Immigration and Customs Enforcement custody.

Officials also confirmed that MaryAnn Tierney, the regional administrator of the Federal Emergency Management Agency, will soon transition out of her short-lived role, where she led the newly established “Southwest Border Coordination Center.” The center was established in February, and Mayorkas appointed Tierney shortly thereafter. Officials have yet to formally announce Tierney’s replacement.

Tuesday’s memo acknowledged “historic levels of migration” to the U.S. border. Apprehensions of migrants along the southern border soared to 221,000 last month, a 22-year high. U.S. border officials are also on track to report a record number of migrant arrivals in fiscal year 2022, which ends in September.