Biden admin denies 'mass deportations' of non-Mexicans in the works as it eyes May end to Title 42

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As the Biden administration tells the Supreme Court that the Title 42 public health order will end when the COVID-19 public health emergency ends in May, it is denying reports that it is planning to replace it with "mass deportations" of non-Mexicans to Mexico.

"Reports that we are considering mass deportations of non-Mexicans to Mexico are false," DHS spokesperson Marsha Espinosa said, in response to a Washington Post report that said a deal is in the works to carry out large-scale deportations across the border when Title 42 ends.

Title 42 has been used by both the Trump and Biden administrations since March 2020 to rapidly expel migrants at the border due to the COVID-19 pandemic. The Biden administration attempted to end the order last year, but was blocked by a court order.  

In a separate case by civil rights groups later in the year that sought to force the administration to end Title 42, the Supreme Court took up the case after a last-ditch Republican appeal. It is expected to rule in the Spring, delaying concerns of a fresh migrant surge until then.

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However, in a court filing on this week, lawyers for the administration told the court that "the anticipated end of the public health emergency on May 11, and the resulting expiration of the operative Title 42 order, would render this case moot."

US President Joe Biden speaks with a member of the US Border Patrol as they walk along the US-Mexico border fence in El Paso, Texas, on January 8, 2023.  (JIM WATSON/AFP via Getty Image)

President Biden had announced last month that the COVID-19 emergency declaration would end in May. The filing urged the court to dismiss the challenge due to the CDC order which says the policy would end when the public health emergency expires. 

Should Title 42 end in May, it would be ending at a time when migrant encounters typically increase. Officials had predicted last year up to 14,000 encounters a day when the order ends.

Such an interpretation once again puts a ticking clock on the order which has been used as a stopgap by the Biden administration to prevent mass releases into the interior amid a historic migrants crisis that has seen millions of migrants hit the border in the last two years.

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The Department of Homeland Security has repeatedly said it has a six-point plan to deal with what is expected to be an enormous surge at the southern border once the order ends. That includes increasing resources to the border, greater cooperation with Mexico, more anti-smuggling operations, and greater use of alternative removal authorities contained within the primary Title 8 authority.

While the administration has laid out its general plan for post-Title 42 border policy, it is unclear what specifically that that will look like. The Post reported this week that President Biden is weighing the deal that would allow hundreds of thousands of migrants to enter the U.S. legally, but also allow "large-scale deportations" of non-Mexicans back into Mexico. According to the outlet, the plan would hand control over key details, such as the nationalities of those being deported, to Mexican authorities.

However, DHS shot down the report on Thursday.

"We’re continuing to work closely with govt of Mexico to implement our successful border enforcement plan which has already resulted in lowest encounter numbers between ports of entry in 2yrs," Espinosa said.

There have already been indications that the end of Title 42 will lead to a massive surge in migration, beyond DHS' own estimates. As the fate of Title 42 was scheduled to end in December, apprehensions at the border shot up even above the already high numbers being seen -- with 251,000 migrant encounters at the border that month alone, marking a new record.

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The Biden administration announced new border measures in January that expand a humanitarian parole program to include Venezuelans, Cubans, Haitians, and Nicaraguans and allows 30,000 nationals to enter a month if they have a sponsor, do not enter illegally, and pass background checks.

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Meanwhile, the administration also expanded Title 42 expulsions to include those nationalities and is expected to introduce a rule in the next month that will forbid migrants from applying for asylum if they have passed through another country and failed to apply there. 

Officials have said that the policy is working, and Biden noted in his State of the Union that encounters of those nationalities have dropped 97%. Sources have told Fox News that encounters in January are down to 150,000 -- the lowest since Feb. 2021. However, the administration has also claimed that the measures by themselves will not fix the crisis, and is urging Congress to pass an immigration bill that would include greater funding for the border as well as amnesty for millions of illegal immigrants – something that has been under consideration since 2021 but has failed to gain Republican support.

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"America’s border problems won’t be fixed until Congress acts. If we won’t pass my comprehensive immigration reform, at least pass my plan to provide the equipment and officers to secure the border. And a pathway to citizenship for Dreamers, those on temporary status, farmworkers, and essential workers," Biden said on Tuesday.

Republicans responded by yelling at him to "secure the border."