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Biden administration asks Supreme Court to deny GOP bid to prolong Title 42 border expulsions, calling policy “obsolete”

El Paso, Texas — The Biden administration on Tuesday urged the Supreme Court to deny a request by Republican-led states to keep the Title 42 pandemic-era border restrictions in place indefinitely, saying the expulsions of migrants under the policy can no longer be justified on public health grounds.

In a 41-page filing, Solicitor General Elizabeth Prelogar, who represents the Biden administration in federal litigation, said the government is prepared to comply with a lower court order in November that found Title 42 to be illegal. Prelogar also argued that the 19 Republican-controlled states seeking to delay Title 42’s rescission were not entitled to intervene in the court case over the policy’s legality.

First enacted in early 2020 by the Trump administration, Title 42 has allowed U.S. border officials to rapidly expel hundreds of thousands of migrants to Mexico or their home country, without allowing them to seek asylum, on the grounds that their entry could contribute to the spread of COVID-19 inside the U.S.

But Prelogar said the Centers for Disease Control and Prevention (CDC) had made a public health determination this spring that Title 42 was no longer needed to reduce coronavirus outbreaks. While she  conceded that Title 42’s end “will likely” fuel a short-term spike in migrant arrivals, Prelogar said there’s no longer a public health basis to continue the expulsions.

Tension grows in the Rio Grande
CIUDAD JUAREZ , MEXICO – DECEMBER 20 Tension grows in the Rio Grande, after dozens of migrants gathered with the intention of entering the neighboring country, after the United States prevented the crossing of migrants, in the El Paso area, through a military barrier and a razor wire fence, in Ciudad Juarez, Mexico on December 20, 2022.

Christian Torres/Anadolu Agency via Getty Images

“If (the states) are dissatisfied with the immigration system Congress has prescribed in Title 8, their remedy is to ask Congress to change the law — not to ask this Court to compel the government to continue relying on an extraordinary and now obsolete public health measure as de facto immigration policy,” Prelogar wrote.

Even though Prelogar implored the Supreme Court to deny the Republican-led states’ request, she also asked the high court to keep Title 42 in place for several days if it ruled in the Biden administration’s favor.

The termination of Title 42 was initially set to occur Wednesday because of the lower court ruling that declared the measure unlawful. But on Monday, Chief Justice John Roberts agreed to pause the termination on administrative grounds to give the full Supreme Court time to decide the request from the red states.

Alabama, Alaska, Arizona, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming have all joined the legal effort to try to force the Biden administration to enforce Title 42 indefinitely. 

The Biden administration on Tuesday asked the Supreme Court to keep Title 42 in place until Dec. 27 if the court denies the GOP-led states’ bid before Friday, Dec. 23. If the high court denies the states’ bid on or after Dec. 23, it should keep Title 42 in place for two additional business days, the administration argued.

Prelogar said the brief window was warranted because the transition from Title 42 to regular immigration procedures would be “a complex, multi-agency undertaking with policy, operational, and foreign-relations dimensions.” She also cited the looming holiday season.

In a separate filing on Tuesday, the American Civil Liberties Union, which secured the lower court ruling that declared Title 42 unlawful, also urged the Supreme Court to reject the Republican-led states’ request to delay the end of the border expulsions. The group said the extension of Title 42 would continue to make migrants easy prey to victimization by cartels and other criminal actors in Mexico.

“The scale of human suffering inflicted by this policy is staggering,” the ACLU wrote, citing a report that recorded over 13,000 reports of kidnapings, rape and other attacks against migrants stranded in Mexico since January 2021. 

In their request to the Supreme Court on Monday, the coalition of Republican attorneys general argued that Title 42’s termination would lead to a crisis along the southern border of “unprecedented proportions,” citing internal government projections showing that daily migrant arrivals could double once the expulsions are halted.

The attorneys general also argued their states would be harmed by Title 42’s recession because it would lead to more migrants using social services and diverting law enforcement resources in their states. 

The ongoing legal fight over Title 42 comes as migrant apprehensions along the southern border continue to be at historically high levels, straining federal resources and local shelters. Some Democratic lawmakers in Congress and in border communities have joined Republicans in calling for Title 42 to be extended.

Democratic officials in El Paso, for example, have said the end of Title 42 will further test their resources, the city’s already-strained shelter system and their ability to transport migrants to the large metropolitan areas where asylum-seekers tend to settle in while their cases are reviewed.

Over the weekend, El Paso’s Democratic mayor, Oscar Leeser, declared a state of emergency, citing the hundreds of migrants who have been forced to sleep on the city’s streets amid dropping temperatures because of the depleted shelter space.

While the Biden administration has acknowledged the end of the Title 42 expulsions will create operational challenges for the federal government and border communities, it has insisted that the restoration of regular immigration procedures will gradually allow officials to reduce illegal crossings.

During Title 42’s implementation, U.S. border authorities have recorded an unusually high rate of repeat border crossings among migrants who try to enter the country multiple times illegally after being expelled to Mexico. 

Once migrants face the threat of criminal prosecution, detention or a formal deportation under U.S. immigration law, which comes with a multi-year banishment, repeat border crossings will plummet, the Biden administration has argued.

The Biden administration has also said it has been preparing for Title 42’s revocation by surging resources and personnel to the southern border, cracking down on human smugglers and convincing other countries in the Western Hemisphere to slow U.S.-bound migration.

Administration officials are also considering adopting a border restriction that would disqualify migrants from U.S. asylum if they failed to seek humanitarian protection in other countries, like Mexico, en route to the southern border, people familiar with the internal plans told CBS News. 

This asylum restriction would likely be paired with expanded opportunities for certain migrants to enter the U.S. legally at border ports of entry or airports if they have financial sponsors here.

Advocates for migrants have argued that Title 42’s end will allow the Biden administration to fully adhere to U.S. asylum law, which allows migrants on American soil to obtain protection if they prove they are fleeing persecution. They’ve also noted that the record border arrivals reported under President Biden have occurred while Title 42 has been in place.

In fiscal year 2022, a 12-month span that ended on Sept. 30, federal authorities along the southern border stopped migrants nearly 2.4 million times, a record high. Just over 1 million of those encounters led to migrants being expelled under Title 42, according to government figures.

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