Biden administration assessing end of Title 42

Expectations are running high that the Biden administration will roll back Title 42, the Trump-era policy that allows for the rapid expulsion of migrants at the border without giving them the chance to seek asylum.

Multiple outlets on Wednesday reported the administration is reviewing plans to end the policy on May 23 but that a final decision has not yet been made, adding to expectations that the Trump-era policy will soon end.

A draft order to end Title 42 is circulating in the federal government, but it has yet to get signoff from all Cabinet departments and the White House, The Hill has learned.

That means the order could still change, subject to comments made by top officials.

Amid discussions over how to repeal Title 42, sources told The Hill that lawmakers were advised the administration could take a phased approach, first ending the policy for families before more broadly ending it for single adults.

Because of the policy’s presumptive public health basis, Centers for Disease Control and Prevention (CDC) Director Rochelle Wollensky technically has the sole authority to end or continue it.

While crafted by the Trump administration just days into the pandemic, Title 42 has been used roughly 1.7 million times by the Biden administration, a figure that includes repeat crossers.

“Health experts have long pointed out that Title 42 has zero grounding in protecting public health,” said Oscar Chacón, executive director of Alianza Américas.

“This policy was designed to keep Black and Brown people from petitioning for asylum at the border. Biden should have ended it his first day in office.”

Top Senate Democrats, including Majority Leader Chuck Schumer (N.Y.), have been openly critical of the Biden administration’s use of the policy and have privately pushed the White House to end Title 42.

“The best time to end Title 42 was day one. The second-best time is now,” said a Senate aide discussing Senate Democrats’ view of the policy.

Wednesday’s leak of the potential order caught most major stakeholders — from the Senate to Cabinet officials — by surprise, furthering confusion as to the administration’s plans.

Administration officials have adopted a two-pronged strategy to counter pressure from the left to rescind Title 42: They have insisted the authority to end the policy rests solely on Wollensky’s shoulders, and they have warned that lifting the policy would spark a surge of migrants at the border.

“We have every expectation that when the CDC ultimately decides it’s appropriate to lift title 42, there will be an influx of people to the border,” White House communications director Kate Bedingfield told reporters Wednesday.

That strategy has fallen on deaf ears among many Democrats in Congress, who see a misguided political calculation behind continuing Title 42.

“I think the policy was pretty arbitrary. And this continuation, I think, has been discriminatory and exclusionary, so I have no regrets if it is done away with completely,” said Rep. Jesús García (D-Ill.).

And the continued implementation of the policy has further driven a wedge between moderates and progressives, who blame the centrists for derailing the more ambitious parts of President Biden’s agenda.

“The senators from my state, [Kyrsten] Sinema [(D-Ariz.)] and [Mark] Kelly [(D-Ariz.)] said, ‘don’t take it out til we have something in place.’ Well, there’s something in place. There was money in the Build Back Better budget to deal with backlog, to deal with judges, deal with additional staff, deal with how the Trump administration destroyed that whole part of immigration services,” said Rep. Raúl Grijalva (D-Ariz.).

The planned withdrawal of Title 42 comes after a conflicting set of court decisions on the policy, one directing the administration to expand the policy by applying it to children traveling alone, while a separate court decision imposed new limits, prohibiting sending families subjected to Title 42 to places where they may face torture or persecution.

The second order even criticized the Biden administration for sticking to its public health argument for Title 42 even as the world has made strides in learning to live with the pandemic.

In response, the CDC days later rescinded the policy for children and noted it would continue a broader review of the order through March 30.

Regardless, advocates remain critical of the policy’s effect on asylum applications — foreign nationals processed under Title 42 are denied the right to claim asylum and summarily expelled from the country.

“Every day that this policy remains in place is a day that people fleeing persecution are subjected to assault, violence, and death, simply for seeking their legal right to protection. Title 42 must end immediately,” said Noah Gottschalk, Oxfam America’s global policy lead.

Biden administration officials have remained wary of lifting a policy that’s granted officials more flexibility to quickly deal with foreign nationals apprehended at the border, as Democrats eye border apprehension numbers ahead of the 2022 midterms.

And while few observers credit Title 42’s health foundations, the pandemic’s progression has played into decisions to maintain the policy.

“At any moment, COVID can attack again,” Health and Human Services Secretary Xavier Becerra told reporters last week.

Becerra added that two previous top-level pushes to consider ending Title 42 were sidelined by the emergence of the delta and omicron coronavirus variants.

“It looks like we are maintaining control and maybe we are arriving at that point,” added Becerra. “But President Biden cannot deal in ‘maybes.'”

Becerra also said he remains in constant communication with Wollensky over Title 42 and other matters, but like other administration officials, insisted the final decision to keep or rescind the policy rests on the CDC.

While DHS has also maintained it has no influence over the CDC’s decision, it signaled on Tuesday that it was preparing for an influx of migrants at the border, something it said could result from typical spring migration patterns or the lifting of Title 42.

Among the scenarios they were preparing include a jump from current flows of about 7,000 migrants a day to as high as 18,000, with the administration scaling up housing, transportation, medical care, and processing capacity to accommodate the increase.

DHS officials have had a complex relationship with Title 42, largely defending it as a public health order out of their hands even though it has been lambasted as an illegal and inhumane immigration policy from both Democrats and immigration advocates.

“We are doing this out of a public health need. It is not an immigration policy. It is not an immigration policy that we would embrace,” DHS Secretary Alejandro Mayorkas said at a White House briefing in September.

Brett Samuels contributed to this report.

Updated at 10:13 a.m. on March 31