After a 2022 that saw record numbers of migrants hit the southern border, the Biden administration’s ongoing border and immigration challenges are only increasing – as it stares down a looming end to its ability to expel migrants under Title 42, and an incoming Republican Congress demanding answers.
A federal judge ruled earlier this month that the U.S. government’s use of the Title 42 public health authority to expel a majority of migrants at the southern border is unlawful. While the judge reluctantly allowed a five-week delay requested by the administration, it means the key authority will be scrapped on Dec. 21.
The administration sought to end the order earlier this year, but was blocked by a federal judge and also faced a significant bipartisan backlash given the ongoing border crisis that has only increased in 2022 over 2021’s already historic numbers. In recent months, the administration had in fact expanded Title 42, with cooperation with Mexico, to include Venezuelan nationals after a surge in migrants from the country.
There were more than 2.3 million migrant encounters in FY 2022, over the 1.7 million encountered in FY 2021. FY 23 has shown few signs of slowing down with more than 230,000 encounters in October alone.
The Biden administration has said repeatedly that it has a plan in place for the end of Title 42, noting additionally that the order’s end will allow it to increase penalties for illegal entry and has plans to increase alternative forms of deportation such as expedited removal -- which allows for deportation without a hearing.
An under-fire DHS Secretary Alejandro Mayorkas earlier this month defended the administration’s position, saying it intends to use the same plan it had in April.
That plan includes surging personnel and technology to the border, prioritizing 'smart border security solutions,' ramping up anti-cartel efforts, bolstering non-profits and making the processing of migrants into the U.S. more efficient.
Additionally, Mayorkas said the administration will focus on increasing consequences for illegal entry.
'We are enhancing the consequences for unlawful entry, especially with respect to individuals who seek to evade law enforcement, including removal, detention and criminal prosecution when warranted,' he said at a congressional hearing.
Mayorkas has also sought to highlight that the U.S. migrant crisis is actually one being experienced by the entire Hemisphere.
'The entire hemisphere is suffering a migration crisis. We are seeing an unprecedented movement of people from country to country. It is not restricted to the southern border,' he said.
But it has so far failed to assuage the administration’s critics -- with even some Democrats remaining nervy about the looming end to the Trump-era order. Democratic Sens. Kyrsten Sinema, D-Ariz., Mark Kelly, D-Ariz., Maggie Hassan, D-N.H., and Jon Tester, D-Mont., wrote to Mayorkas this week expressing 'deep concern' about the end of Title 42.
They note that DHS has conceded that an end to Title 42 will lead to an increase in the number of migrants encountered along the southern border, and noted previous concerns about DHS preparations.
'Record annual encounters have led to untenable situations. In Arizona, shelters have been forced well beyond capacity. This month, El Paso has seen over 700 migrants released directly onto city streets due to overcrowding,' they say. 'This is not safe, and creates a dangerous situation for migrants and communities.'
Border Patrol agents have also been worried about the end of the order, with the National Border Patrol Council predicting a 's---show' if the order expires.
Republicans have also been hammering the administration over the expiration of the order -- and the GOP’s voice is about to get a lot louder as its House caucus will take control of the chamber early next year, opening a new front in their efforts to put pressure on the administration over the crisis.
GOP Leader Kevin McCarthy previewed the aggressive stance when, during a trip to the border last week, he demanded Mayorkas resign or face possible impeachment hearings when Republicans take the House.
'He cannot and must not remain in that position,' McCarthy said. 'If Secretary Mayorkas does not resign, House Republicans will investigate every order, every action and every failure to determine whether we can begin an impeachment inquiry.'
McCarthy said he had spoken to Reps. Jim Jordan and James Comer, the ranking Republicans of the Judiciary and Oversight Committees, respectively, and said they have his complete support to investigate the 'collapse' of the border.
'The American public deserves more, deserves better and expects more within their government. Enough is enough. We will do whatever it takes,' he said.
DHS quickly pushed back, accusing lawmakers of blaming the agency for the failures of Congress to fix immigration law.
'Members of Congress can do better than point the finger at someone else; they should come to the table and work on solutions for our broken system and outdated laws, which have not been overhauled in over 40 years,' a DHS spokesperson said on Wednesday.
Meanwhile, the Biden administration is engaged in another legal wrangle, now before the Supreme Court, over its efforts to dramatically narrow Immigration and Customs Enforcement (ICE) arrest and deportation priorities.
In 2021 the administration issued a memo that restricted ICE agents to prioritizing three sets of illegal immigrants -- recent border crossers, 'aggravated felons' and national security threats. The restricted priorities coincided with a sharp drop in arrests and deportations, but the administration claimed it was quality rather than quality -- and Mayorkas declared that it had 'fundamentally changed immigration enforcement in the interior.'
'For the first time ever, our policy explicitly states that a non-citizen's unlawful presence in the United States will not, by itself, be a basis for the initiation of an enforcement action,' he said.
That led to a legal challenge from Republican states, who said the policy was damaging to their states and against congressional law which mandates DHS detains most illegal immigrants. The guidelines have since been frozen, casting uncertainty over how ICE should conduct its mission.
The appeal to that ruling went before the high court for oral arguments on Tuesday, and a majority of the Court appeared likely to limit the government’s discretion in the matter.
Chief Justice John Roberts noted federal immigration law mandates DHS 'shall' detain and remove most non-citizens in the country illegally.
'It's our job to say what the law is, not whether or not it can be possibly implemented or whether there are difficulties there,' said Roberts.
The high court in this case was dealing with three issues: whether the state plaintiffs have 'standing' in court to challenge the DHS enforcement policies, whether those guidelines are contrary to federal law, or otherwise violate the Administrative Procedure Act; and whether federal law prevents the entry of an order to 'hold unlawful and set aside' the Guidelines under federal law. A ruling is expected in June 2023.
Fox News' William Mears contributed to this report.