2 years ago
The White House is planning to revoke a Trump-era deportation policy for migrants arriving at the Southern border, according to multiple people briefed on the plans.
And as part of its approach, it is considering phasing out the public health order, Title 42, starting with families and followed by all adults at a later date, according to four sources familiar with the policy change.
The decision is not yet final, though administration officials have suggested in private conversations with lawmakers and advocates that a phase out is their most likely path. Earlier this month, the Biden administration announced it would no longer apply Title 42 to unaccompanied migrant children arriving at the U.S.-Mexico border.
An announcement could come as early as Thursday evening, those sources said, though the implementation of the new policy would take longer.
Officials have also said they are preparing contingency plans for the likelihood of increased migrants at the border once the order is rolled out. That comes as several border-state lawmakers, including Democrats, have warned of a potential influx once Title 42, which allowed for immediate deportations on grounds of managing the public health elements of the pandemic, is fully reversed. Several Democrats have publicly urged Biden not to revoke the policy, others have called its usage a discriminatory remnant of the Trump era.
The White House said they continue to defer to the Centers for Disease Control and Prevention on decisions around Title 42 and that any possible announcement on any change in the order will come from the agency.
The order was first instituted by the Trump administration but has been left in place for more than a year under Biden, who ran for president promising to revamp and rebuild the immigration system and undo harsh deportation policies. The order gave border patrol the discretion to turn away asylum seekers encountered at the border without any legal process.
After taking office, Biden kept the order in place under the rationale that the Covid pandemic was still raging. When first instituted, then-Sen. Kamala Harris (D-Calif.) and nine other senators said the use of Title 42 to rapidly expel migrants encountered at the border was an act of “executive fiat” that violated constitutional rights.
The Associated Press reported earlier on Wednesday that the White House was eyeing a May 23 end date for the Title 42 policy.
In recent months, Democrats and immigrant advocates have ramped up pressure on the administration to fully undo the order, calling it a xenophobic policy to expel those seeking asylum under the guise of fighting the pandemic.
A recent court decision also put pressure on the administration over its use of Title 42.
In March, the U.S. Court of Appeals for the D.C. Circuit upheld a lower court’s injunction in favor of families suing the U.S. government in a nationwide class action suit challenging the order. The court said that while the government had the right to expel migrants it considered a health threat during a public health emergency, it was unlawful for the government to expel people to countries where they might face persecution or torture.
The injunction would go into place on April 25, effectively barring the administration from continuing to expel families under the order to places where they would be persecuted or tortured.
Lee Gelernt, the ACLU lawyer representing the families in the case, says if the administration is planning to end the order for all individuals at a future date, it should also begin “a significant wind down” immediately.
“Title 42 is a horrific and unjustified policy that should never have been enacted and has caused grave harm to thousands of asylum seekers over the past two years.”
Daniel Lippman and Krista Mahr contributed to this report.
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