Is Border Patrol ready? US officials offer few details on plans when Title 42 policy lifts

Details are scarce about how the U.S. Border Patrol is preparing for the expected lifting of a Trump-era border restriction in less than a week.

The agency has remained tight-lipped about specific plans to manage the projected influx of thousands of migrants at the southern border when Title 42 is projected to end Dec. 21. The U.S. Department of Homeland Security is estimating that between 9,000 to 14,000 migrants may try to cross the U.S.-Mexico border daily when the controversial health policy is lifted, according to CNN.

DHS released framework plans Tuesday for how it plans to navigate a post-Title 42 reality. The initiative relies on a “carrot-and-stick” approach that would provide increased legal pathways for asylum seekers alongside consequences for those who fail to use the new programs.

DHS requested $3.4 billion in funding from Congress to implement the plan and manage the U.S.-Mexico border after Title 42 ends, according to the DHS document.

Border Patrol agents could face a workload double or greater as processing burdens increase, possibly resulting in overcrowding in facilities and longer detention times, according to a September report from the U.S. Department of Homeland Security Office of Inspector General.

The report documented that “guidance to agents on when Title 42 goes away is scarce” and there are no plans for what processing alternatives could be used when the border restriction ends. The report found that Border Patrol is “unprepared” to meet the increase in processing and placement burdens.

Title 42, a health policy invoked in March 2020, allows border officials to swiftly expel migrants and asylum seekers arriving at the country’s borders. The policy has been used to expel migrants more than 2.4 million times and has bottled up tens of thousands of people in Mexican border cities waiting to request asylum.

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On Nov. 15, U.S. District Judge Emmet Sullivan in Washington, D.C., vacated the policy and gave the Biden administration five weeks to prepare for the end of the restriction. The restriction is tentatively set to lift Dec. 21.

"We're mindful of the fact that Title 42 is going to end early next week," Homeland Security Secretary Alejandro Mayorkas said during a visit to the border in El Paso Tuesday.

"We're also mindful of the fact that we have to coordinate with our partners, not just the nonprofit organizations with which we work very closely, not just cities along the border like El Paso, but also our international partners. So we're moving as quickly as we can."

Republican lawmakers, including Rep. Andy Biggs, R-Ariz., promised to investigate Mayorkas Tuesday for his handling of the situation at the U.S.-Mexico border. The investigation could result in his impeachment.

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Asked about how Border Patrol is preparing for the end of Title 42, John Mennell, CBP's public affairs specialist for Arizona, referred to DHS’ official statements about the end of the policy. The statements emphasized that the border is closed and that immigration laws will continue to be enforced.

“Title 42 will remain in place during the period of the stay, allowing the government to prepare for a transition and to continue to manage the border in a safe, orderly, and humane way,” the DHS statement read.

“Across the federal government we also continue to work with other countries to address the root causes of irregular migration that are leading to an unprecedented migratory surge and challenging our hemisphere.”

DHS did not respond to requests for further comment on the policy’s end.

Border Patrol returns to Title 8

Once Title 42 is lifted, the Biden Administration plans to fully revert processing of migrants to the Title 8 authority of the Immigration and Nationality Act.

Procedures under Title 8 have historically been used to process migrants at the border and were standard practice before the pandemic.

Similarly, the Border Patrol will fully resume using Title 8 when Title 42 is rescinded, according to the OIG report. U.S. Customs and Border Protection noted in the report that it has given guidance to the field with "instructions for processing migrants, both currently as well as when CDC’s order prohibiting entry under Title 42 is rescinded.”

Under Title 8, Border Patrol agents will have to fully process every migrant they encounter as opposed to being able to rapidly expel some migrants under Title 42. Only migrants from Mexico, Venezuela and the Northern Triangle countries of Guatemala, Honduras and El Salvador can be returned to Mexico under Title 42.

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Yuma Sector Border Patrol Chief Chris Clem spoke about how agents have managed the record number of migrant encounters along the U.S.-Mexico border under Title 42 in a recent interview with The Arizona Republic.

Total encounters along the southern border surpassed 2 million for the first time in one year in fiscal year 2022, according to CBP data.

“We've added a lot more resources to do the processing and handle the lion's share of the migrants, to put more agents and more resources back to the border,” Clem said. “That's been a learning experience, and we've gotten better every time we've gone through some kind of surge or crisis because it's not new to us.”

Title 42 is used far less in the Border Patrol’s Yuma Sector when compared to the Tucson Sector. In the Yuma Sector only about 6% of encounters ended with a Title 42 expulsion thus far in fiscal year 2023, which is largely because of the nationality of the migrants apprehended, according to CBP data.

“Over the last few years, when the numbers have really increased, we've had to make adjustments internally, and that's just what we do,” Clem said.

“Whether it's through a pandemic, through a migration surge, Border Patrol agents and the people that support them have come to work every day to do their job.”

States attempt to delay policy's end

Arizona, alongside 18 other Republican-led states, filed an emergency motion late Monday with the U.S. Court of Appeals for the District of Columbia Circuit in an attempt to delay the end of Title 42. The states argued that they will suffer “irreparable harm” if Title 42 is allowed to be rescinded, according to the court filing.

“As was the case the first time around, the impending cancellation of the Title 42 System will cause an enormous disaster at the border,” the motion read.

The coalition of states asked the appeals court to suspend Sullivan’s decision to end Title 42 and requested a decision be made by Friday. If the appeals court were to deny the request, the states asked for a seven-day administrative stay of Sullivan’s ruling so that they could take their case to the U.S. Supreme Court to seek relief, according to the court filing.

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DHS’ framework plans build upon and update its “six pillars” plan it first released in April, when Title 42 was set to end in May. The plan focused on: surging resources and personnel to the border; increasing processing speeds at ports of entry and Border Patrol stations; and implementing long-term consequences for unlawful entry, including removal, prosecution and detention.

“In the absence of congressional action to reform the immigration and asylum systems, a significant increase in migrant encounters will strain our system even further,” Mayorkas said in a written news release. “Addressing this challenge will take time and additional resources, and we need the partnership of Congress, state and local officials, NGOs, and communities to do so.”

In its 2023 budget request, CBP has asked for an additional 300 Border Patrol agents to supplement the 23,000 agents and officers already working along the U.S.-Mexico border. The agency has also added 10 facilities to increase holding capacity since 2021, according to the DHS planning document.

CBP has also developed its CBP One mobile app to allow asylum seekers to submit information and schedule appointments at ports of entry ahead of time once Title 42 is rescinded.

“The issues related to ensuring an orderly humane migration process at the border are being persistently and constantly addressed through the interagency process," said Jake Sullivan, national security adviser to President Joe Biden, during a White House news briefing Monday about Title 42.

“We are working through what the procedures will be in place at the moment of expiration on the 21st.”

The administration is considering the expansion of a humanitarian program, implemented when Title 42 was expanded to include Venezuelans, that allowed up to 24,000 Venezuelans into the country. Officials are considering creating similar programs for Nicaraguans, Haitians and Cubans to be able to apply for humanitarian parole from their home countries, according to NBC News.

Biden tried to rescind Title 42 in May but a federal judge in Louisiana subsequently blocked the administration’s efforts, leaving the policy in place indefinitely.

Have a news tip or story idea about the border and its communities? Contact the reporter at jcastaneda1@arizonarepublic.com or connect with him on Twitter @joseicastaneda.