Nov 22, 2022 - Politics & Policy

GOP states seek to keep Title 42 border policy

 A view from the camp majorly populated by Venezuelan migrants in front of the US Border Patrol operations post across the Rio Bravo River in Mexico

A view from the camp majorly populated by Venezuelan migrants. Photo: Carlos Ernesto Escalona/Anadolu Agency via Getty Images

Fifteen Republican-led states are pushing a last-minute legal effort to keep alive a controversial COVID-19 policy that cites threats to public health to quickly expel migrants and asylum seekers, according to a new court filing.

Why it matters: Title 42 — used 2.4 million times over the course of more than two and a half years — is slated to end Dec. 21 after U.S. District Judge Emmet Sullivan last week ruled it unlawful.

Driving the news: Republican attorneys general from Arizona, Louisiana, Alabama, Alaska, Kansas, Kentucky, Mississippi, Nebraska, Ohio, Oklahoma, South Carolina, Texas, Virginia, West Virginia and Wyoming submitted a motion to Sullivan to intervene in the Title 42 case late Monday evening.

What they're saying: The filing argues states such as Arizona and Texas "will face increased migrant flows and increased releases of aliens if the Title 42 process is terminated," adding migrants "will flow to other States, too."

  • "Wherever those aliens end up, they will impose financial burdens on the States involuntarily hosting them," it says.

The other side: "Title 42 is not about general border enforcement but public health, and these states cannot plausibly claim their interest here is about public health," ACLU attorney Lee Gelernt told Axios.

How we got here: Last week, Sullivan ruled the Title 42 public health order was "arbitrary and capricious in violation of the Administrative Procedure Act."

  • Sullivan agreed "with great reluctance" to the administration's request of a five-week stay to allow them time to prepare for the policy's end.
  • While some Democrats and immigration advocates have long criticized the Biden administration for using the Trump-era public health order, Republicans have expressed concern that lifting Title 42 could fuel more migrants and asylum seekers to cross the southwest border.

Throwback: The Biden administration tried to end Title 42 on their own earlier this year only to be blocked by a different federal judge.

  • Since then, border officials have continued to use the tool to quickly remove migrants who arrive at the U.S.-Mexico border to their home country or to Mexico.
  • Most recently, the administration has used Title 42 as part of its new process for Venezuelans who arrive at the U.S.-Mexico border. The new program will allow 24,000 Venezuelans into the country via a legal parole process, while forcing others who crossed the southern border illegally back to Mexico.
  • Nearly 6,000 Venezuelans were expelled using Title 42 last month, compared to just 87 in September.

By the numbers: The number of people arriving at the U.S.-Mexico border has remained at high levels, with 231,000 crossings last month — more than either of the past two Octobers.

  • 38% of unique encounters last month were with migrants from Venezuela, Nicaragua or Cuba. It is difficult for the U.S. to deport these migrants due to frosty relations with the authoritarian governments in their home countries.
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