Courts, Congress attempt to mitigate border crisis as Title 42 expires

A U.S. Border Patrol agent body searches illegal immigrants at the U.S.-Mexico border on May 12, 2023, in El Paso, Texas. The U.S. Covid-era Title 42 immigration policy ended the night before. Border authorities and U.S. citizens are concerned about the massive influx of asylum claims and the humanitarian crisis facilitated by cartels trafficking drugs and humans into the U.S. | John Moore/Getty Images

A federal judge has temporarily stopped the Biden administration from releasing illegal immigrants into the country en masse as Congress works to address the border crisis that is expected to worsen following the expiration of a coronavirus-era immigration policy.

In the case of State of Florida v. Alejandro Mayorkas et al., Judge T. Kent Wetherell II of the U.S. District Court for the Northern District of Florida issued a temporary restraining order on Thursday preventing the Biden administration from implementing a new program outlined in a memorandum titled “Policy on Parole with Conditions in Limited Circumstances Prior to the Issue of a Charging Document (Parole with Conditions).”

The restraining order will remain in effect for two weeks, giving the Biden administration time to appeal the ruling.

As explained in the ruling, the new policy would enable U.S. Customs and Border Patrol to release illegal immigrants arriving in the U.S. into the country “conditioned on [the alien], within 60 days, scheduling an appointment to appear at a U.S. Immigration and Customs Enforcement (ICE) facility for initiation of appropriate removal proceedings or requesting service, via designated online location, of a Notice to Appear (NTA) by mail.”

Wetherell, appointed by former President Donald Trump, noted that the policy would “only be used” when CBP facilities exceed processing capacity and in situations where there are more than 7,000 interactions between federal law enforcement officials and migrants at the Southwest border.

Data compiled by CBP showed the number of such encounters ranged from 227,547 in September 2022 to 252,012 in December 2022, statistics demonstrating an average of more than 7,000 apprehensions per day in those months.

Contending that the border crisis was about to “get worse” when Title 42 expired, Wetherell sided with Florida by characterizing the new policy as similar to an earlier one previously struck down by the courts. He stressed that the previous ruling determined that “Florida suffers substantial harm — both to its sovereignty and its public fisc — when the federal government releases aliens into the country on ‘parole.’”

Wetherell’s ruling came just hours before the Trump-era Title 42 measure that allowed border officials to quickly turn away illegal immigrants seeking entry into the U.S. due to the threat posed by the coronavirus pandemic expired at midnight Friday.

As efforts to mitigate the border crisis continue in the courts, the U.S. House of Representatives voted to advance H.R. 2, also known as the Secure the Border Act of 2023, on Thursday.

The House’s 219-213 vote on the border security package, which incorporates elements of three separate bills, took place hours before Title 42’s expiration. As expected, support for the Secure the Border Act of 2023 is closely correlated with partisan identification. Only two Republicans, Reps. John Duarte of California and Thomas Massie of Kentucky, voted against the measure while not a single Democrat supported it.

The bill combines three separate bills into one piece of legislation: The Border Reinforcement Act of 2023, the Border Security and Enforcement Act of 2023 and the ORDER Act. The legislation calls for the resumption of construction on the border wall separating the U.S. from Mexico that the Biden administration halted upon taking office and the creation of a report by the Department of Homeland Security determining whether to designate Mexican drug cartels as terrorist organizations.

Additional provisions of the bill re-establish the Trump era "Remain in Mexico" policy requiring illegal immigrants ineligible for asylum in Mexico to remain there while they wait for their asylum claims to be adjudicated and order the reopening of ICE detention centers that were closed or repurposed under the Biden administration.

For its part, the Biden administration has vowed not to support the legislation should it reach President Joe Biden’s desk. In a statement released Monday, the administration announced that it “strongly supports productive efforts to reform the Nation’s immigration system but opposes H.R. 2.”

Warning that the legislation “makes elements of our immigration system worse,” the White House maintained that “H.R. 2 does nothing to address the root causes of migration, reduces humanitarian protections, and restricts lawful pathways, which are critical alternatives to unlawful entry.” It condemned the measure as an effort to “cut off nearly all access to humanitarian protections in ways that are inconsistent with our Nation’s values and international obligations.”

At the same time, the Biden administration defended its strategy on immigration policy in the U.S., summarizing its priorities as “expanding legal pathways while increasing consequences for illegal pathways, which helps maintain safe, orderly, and humane border processing.”

As the Secure the Border Act of 2023 faces a low likelihood of passage in the Democrat-controlled U.S. Senate and a promised veto from the president, Sen. Krysten Sinema, I-Ariz., and Thom Tillis, R-N.C., have introduced legislation that would expand the protections of Title 42 for two years.

Even with Title 42 in place, millions of illegal immigrants have entered the U.S. since Biden took office. The number of border crossings measured by CBP reached 2,378,944 in fiscal year 2022, a noticeable increase from the 1,734,686 recorded in fiscal year 2021. Halfway into fiscal year 2023, CBP has documented 1,223,067 land encounters between migrants and border enforcement officials.

Ryan Foley is a reporter for The Christian Post. He can be reached at:

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