WASHINGTON — One of the most expansive immigration restrictions along the U.S.-Mexico border remained in force on Tuesday evening as lawyers for the Biden administration, migrant rights activists and Republican governors debated its continued use in written briefs submitted to the Supreme Court.
Government lawyers acknowledged that the end of the restrictions, which are known as Title 42, will “likely lead to disruption and a temporary increase in unlawful border crossings.”
“The government in no way seeks to minimize the seriousness of that problem,” the lawyers said in their brief. “But the solution to that immigration problem cannot be to extend indefinitely a public health measure that all now acknowledge has outlived its public health justification.”
Still, the lawyers asked that the court keep Title 42 in place until after Christmas so the government could get the proper resources in place.
The border restrictions were put in place by former President Donald J. Trump early in the coronavirus pandemic to quickly expel millions of migrants on public health grounds. But advocates for asylum seekers sued, arguing that there is no longer a valid health rationale for arbitrarily denying migrants their legal rights to ask for safe harbor in the United States.
Their lawsuit set off a fierce legal battle, culminating last month in an order by a federal judge directing border officials to stop enforcing Title 42 and return to the regular process of deciding who qualifies for asylum. The judge set a Dec. 21 deadline, and Biden administration officials began preparing for a surge of border crossings.
But Chief Justice John G. Roberts Jr. temporarily halted those plans on Monday in response to an appeal by 19 Republican-led states, which have argued that ending enforcement of Title 42 will lead to “a crisis of unprecedented proportions at the border.” Justice Roberts directed lawyers for the government and the asylum seekers to respond to that argument by Tuesday evening.
More on U.S. Immigration
- Title 42: The Supreme Court is reviewing a request from 19 Republican-led states to keep in place the pandemic-era policy that has been used to block migrants from seeking asylum in the United States.
- Arizona: The state’s outgoing governor spent $82 million on a makeshift wall made from shipping containers along the border with Mexico. His successor calls it a waste of money.
- Texas: Officials in the state took steps to all but close an international crossing in El Paso, which has become a main destination for immigrants seeking to enter the United States.
- Tech Workers: As cutbacks batter the tech industry, some foreigners on work visas are facing a daunting prospect: having to leave the United States unless they are hired within 60 days of being laid off.
The Supreme Court could now let the Biden administration end the use of Title 42 in a matter of days, or the justices could hold off for weeks or months as they consider the challenge from the 19 states. For the moment, that leaves the future of the Title 42 restrictions — and the fate of thousands of migrants camped in Mexico just south of the United States — in legal limbo.
The migrants, primarily from Central America, are waiting in small Mexican towns, hoping that the Supreme Court agrees to lift the enforcement of the Trump-era policy. In Reynosa, the Mexican city across the border from McAllen, Texas, in the Rio Grande Valley, Héctor Silva, the pastor who runs Senda de Vida Ministry, said he expected up to 1,000 migrants to arrive per day once Title 42 is no longer being enforced.
“Everyone is waiting to hear what’s going to happen,” Pastor Silva said. “What I am asking primarily for right now is food. We need to feed everyone who gets here.”
On Monday, El Paso took steps to receive what is expected to be a surge of migrants when the health restrictions are lifted. El Paso joined other Texas border cities last week in declaring a state of emergency after migrants overloaded area shelters, leading to an alarming increase in people sleeping on the streets as temperatures dipped below freezing.
In a news release, city officials said they had identified “mass shelter facilities” to accommodate 1,000 to 2,000 people and would provide essential services such as food, bathrooms, showers, toiletries and transportation. The Red Cross will also be on hand to help as needed, city officials said. The city’s airport is also serving as a shelter for migrants who have airplane tickets to other destinations in the United States, the officials said.
“It is imperative that our community work collaboratively to address this federal migrant crisis,” said Mario D’Agostino, a deputy city manager for public safety in El Paso. “We must implement an aggressive but humane response to ensure we are taking care of everyone in our community as well as those passing through our community.”
On Tuesday, National Guard units, including military vehicles, and members of the Texas Department of Public Safety lined up along the Rio Grande in El Paso, a show of force that left some local officials frustrated. The Texas National Guard announced on Monday that it had deployed assets from the 136th Airlift Wing in Fort Worth to ferry soldiers and equipment to the border.
“I do not want these initiatives to turn into policing simply because of political overtures or political opportunities,” said Ricardo Samaniego, the El Paso county judge. He said he had been told that the show of force was a training exercise and that it was unclear how long the group would remain at the border.
In Washington, the debate over the use of the Title 42 restrictions has helped to highlight the administration’s difficulty in making good on President Biden’s promise of border policies that are both secure and humane. As officials have struggled to respond to historic levels of migration, they have at times been criticized by immigration advocates for relying too heavily on Trump-era policies.
At the same time, Mr. Biden and his team have been under intense fire from Republicans, who accuse the administration of being too lenient at the border. House Republicans, who will be in the majority next year, have promised to investigate — and seek to impeach — Alejandro N. Mayorkas, the secretary of homeland security.
As a candidate for president, Mr. Biden vowed to quickly terminate Mr. Trump’s immigration policies, including the use of Title 42 as a tool to manage the border. But once in office, Mr. Biden deferred to the judgment of the Centers for Disease Control and Prevention, which waited until April to say it would end the use of the restrictions.
Administration officials have been racing to develop alternative policies to replace the use of Title 42 restrictions in an effort to ensure that American border communities and government immigration facilities are not overrun by migrants who believe they will have an easier time crossing into the United States. But even with the deadline approaching, officials had not yet completed those plans this week, according to people briefed on the effort.
People familiar with the debate inside the White House and the Department of Homeland Security said some officials favored more restrictive policies aimed at deterring migrants from trying to cross into the United States, while other officials were pushing for policies that give more opportunity for people to enter the country legally.
Some administration officials have privately argued for the continued use of Title 42, but officially, the Justice Department has pledged to abide by the court rulings saying it must end. In their filing to the Supreme Court on Tuesday, the department’s lawyers argued that the 19 states did not have the legal standing to challenge the judge’s decision in the case.
Advocates for immigrant rights have said for months that using Title 42 is unfair to migrants who are fleeing persecution, famine and violence in countries around the world. American and international law says the United States is obligated to give migrants an opportunity to apply for asylum.
The American Civil Liberties Union, which represents migrants who are challenging the continued use of Title 42, is urging the Supreme Court to let it end.
“Title 42 was never supposed to be permanent and has long outlived any possible public health justification,” said Lee Gelernt, the group’s lead lawyer on the Title 42 litigation. “No one suggests that all those seeking entry are ultimately entitled to asylum, but Title 42 denies them even a hearing. That is the core problem with the policy, and it is one this country said it would never repeat again after World War II.”
But lawyers for the 19 Republican-led states said in their petition to the Supreme Court that doing so would “inflict massive irreparable harms on the states” because costs of immigration are often borne by state governments where migrants must be dealt with after arriving in the United States illegally.
Supporters of that position this week urged the Supreme Court to let the public health restrictions stand.
“We will take as many days of Title 42 as we can get,” Brandon Judd, the head of the Border Patrol union, said on Monday. “The flood that’s going to come after Title 42 ends is going to be beyond belief.”
Michael D. Shear reported from Washington, and Edgar Sandoval from El Paso. Eileen Sullivan contributed reporting from Washington.