Biden sending 1,500 troops to U.S.-Mexico border as Title 42 winds down

The Biden administration will send an additional 1,500 National Guard troops to the U.S.-Mexico border to support border officials ahead of an expected influx of migrants seeking asylum following the end of Title 42 next week.

Homeland Security officials said they requested more troops be sent to the border to "augment the 2,500 military personnel currently providing support at the Southwest Border with an additional 1,500 personnel for a period of 90 days."

The troops will be "performing non-law enforcement duties such as ground based detection and monitoring, data entry, and warehouse support," DHS officials said. They noted that military personnel "have never, and will not, perform law enforcement activities or interact with migrants or other individuals in DHS custody."

"This support will free up DHS law enforcement personnel to perform their critical law enforcement missions," DHS officials said, adding that Defense Department personnel have supported DHS on the border since 2006.

Pentagon Press Secretary Brig. Gen. Pat Ryder said Tuesday that Defense Secretary Lloyd Austin approved a "temporary" increase of 1,500 military personnel to supplement CBP on the border and fill "critical capability gaps." He reiterated military personnel "will not directly participate in law enforcement activities."

"This deployment to the border is consistent with other forms of military support to DHS over many years," Ryder said. 

For the last three years, border officials have used Title 42 to rapidly expel thousands of people from the U.S. if they have traveled through a country with COVID-19 infections. The Biden administration has sought to wind down Title 42 and earlier this year said the policy would end just before midnight on May 11.

DHS officials have said border officials could face more than 10,000 daily crossings along the southwestern border daily after Title 42 expires, prompting some local officials to warn about a potential "humanitarian disaster" without federal help, including continued funding for shelter space, transportation, health care and food.

Since Title 42 was imposed, people have been expelled from the U.S. nearly 2.5 million times. 

Ostensibly supported by the CDC during the early days of the pandemic, the policy relied  on a 1944 public health law allowing the Trump administration to push migrants out of the United States, including thousands of asylum seekers who are still marooned in northern Mexico. The policy has remained in place under President Joe Biden, even as other Trump border policy bulwarks, including the Migrant Protection Protocols, were shuttered.

Historically, the U.S. has used troops to buttress border enforcement, and the Pentagon has aided civilian law enforcement agencies since the early 1990s, serving in supporting roles under the Bush, Obama and Trump administrations.

In 2018, Arizona Gov Doug Ducey sent about 600 National Guard troops to the border as part of Operation Guardian Support and they served in a multitude of support roles in the Tucson Sector, including fixing vehicles in the agency's motor pool, working surveillance equipment, and tending horses at the Nogales station.

Since it was imposed by the Trump administration during the early days of the COVID-19 pandemic, Title 42 has been used to quickly expel thousands of people from the U.S., including asylum seekers who have traveled through countries with high number of COVID-19 cases. During the policy's first year, U.S. Customs and Border Protection officials expelled people from the U.S. over 197,000 times. The following year, CBP officials used Title 42 to expel people from the U.S. over one million times.

The policy was implemented to mitigate the spread of COVID-19 into historically cramped, and often unsanitary border facilities, allowing agents to process people in the field, and then expel them back to "their country of last transit," which was almost invariably Mexico.

With the policy in place, the number of encounters between border officials and migrants rapidly rose as people made multiple attempts to enter the U.S. In March, around 23 percent of encounters involved someone who was previously expelled. According to CBP data, there were more than 162,000 encounters in March, however, this represented around 124,000 "unique individuals," nearly one-third of whom were single adults.

While the policy allowed CBP officials to limit how many people were held in custody, the agency continued to use Title 8 to either prosecute those who crossed the border without authorization, or process asylum seekers, including families and children traveling without parents or guardians.

Human rights and immigration advocacy groups filed a lawsuit arguing Title 42 was unlawful because it allows the "summary expulsion of non-citizens, including vulnerable families seeking asylum in this country, without any of the procedural protections guaranteed by Congress."

'We've been working day-in and day out'

While critics have blasted the Biden administration for being unprepared for the end of Title 42 next week, during a press conference in Nogales on March 21, Homeland Security Secretary Alejandro Mayorkas told Tucson Sentinel his agency has been planning for the policy's end since September 2021. This would include surging personnel to the border, as well as adding transportation, and "increasing efficiencies" in processing people.

"We have a multi-part plan," he said. "We've been working day-in and day-out to continue working on that plan," he said, adding it was supplemented in April 2022 and that work continued through mid-March.

Mayorkas added the agency is seeking to change the asylum system, attempting to "preserve the institution of asylum—which we are so proud of—but at the very same time cut out the smuggling organizations that exploit migrants at their most vulnerable time."

He said the agency would seek to "build safe, legal and orderly pathways" and yet "deliver a consequence for those who did not avail themselves of the pathway." Earlier this year, DHS submitted a rule that would add new conditions for asylum and swiftly deport those who cross the border without authorization.

"But, ultimately, foundationally we must have Congress passed legislation to fix what is a broken system," he said. 

On Monday, DHS officials released a five-part plan on how they would work to manage the end of Title 42, which includes adding new non-uniformed personnel to assist in processing and facility operations," expanding the surveillance tower network, speeding up processing at Border Patrol stations and U.S. ports, and seeking expanding prosecutions against more than 16,000 people.

The agency also said it would spend $800 million to give communities help to support migrants, including nearly $364 million slated for shelters and service programs—which would aid Maricopa and Pima counties as they face increasing numbers of migrants at shelters.

Finally, the agency said they would continue targeting criminal organizations, including smuggling outfits, and would expand humanitarian aid to mitigate the number of asylum seekers leaving their homes under the Los Angeles Declaration, with nearly $1 billion in assistance.

With Title 42 winding down, Biden administration officials outlined how they would mitigate the number of people crossing the U.S.-Mexico border.

In the statement, a DHS spokesman said CBP is "investing in technology and personnel to reduce its need" for support from the Defense Department "in the coming years, and we continue to call on Congress to support us in this task."

DHS and the State Department also noted they released a series of policy proposals to "further reduce unlawful migration across the Western Hemisphere, significantly expand lawful pathways for protection, and facilitate the safe, orderly, and humane processing of migrants."

"Like many other COVID-era public health measures, the CDC’s temporary Title 42 public health order will also come to an end. But the lifting of the Title 42 order does not mean the border is open," DHS officials said.

They noted that without Title 42, officials would return to using Title 8 to "expeditiously process and remove individuals who arrive at the U.S. border unlawfully." They noted under Title 8, those who crossed the border between U.S. ports could face "steep consequences for unlawful entry, including at least a five-year ban on reentry and potential criminal prosecution for repeated attempts to enter unlawfully."

They also said that a return to Title 8 is "expected to reduce the number of repeat border crossings over time, which increased significantly under Title 42."

"Individuals who cross into the United States at the southwest border without authorization or having used a lawful pathway, and without having scheduled a time to arrive at a port of entry, would be presumed ineligible for asylum under a new proposed regulation, absent an applicable exception," they wrote.

On Thursday, DHS officials said new measures will be in place in partnerships the governments of Mexico, Canada, Spain, Colombia, and Guatemala.

They also noted they would expand the use of CBPOne—a phone-based application that allows migrants to schedule an appointment at a port of entry. Since January, around 64,000 people have used the CBPOne app to schedule an appointment, however, migrant aid groups have argued the application is flawed, often crashing and failing to recognize applicants with darker skin tones, including Black asylum seekers from countries like Haiti.

Officials said with Title 42 removed, migrants in Central and Northern Mexico will have access to CBPOne and may schedule an appointment to present themselves at a port of entry rather than trying to enter between ports. "CBPOne will make additional appointments available, and the use of this tool will enable safe, orderly, and humane processing," DHS officials said.

They added they would create a new "family reunification parole processes" for people from El Salvador, Guatemala, Honduras and Colombia, and modernize the family reunification parole processes for Cuba and Haiti. "These processes, once finalized, will allow vetted individuals with already approved family-based petitions to be paroled into the United States, on a case-by-case basis," DHS officials said.

They also announced a new cap on the number of refugees from Latin and South America.

"Importantly, these measures do not supplant the need for congressional action," DHS officials said. "Only Congress can provide the reforms and resources necessary to fully manage the regional migration challenge."

"Since taking office, President Biden has continually called on Congress to pass legislation to update and reform our outdated immigration system. State and DHS are taking action with the tools and resources available under current law, but Congress’s failure to pass and fund the President’s plan will increase the challenge at the southwest border," DHS officials wrote.

Last week, the White House invoked federal law to allow members of the National Guard to help mitigate international drug trafficking, and on Monday, the Biden administration unveiled a plan to give international organizations as much as $50.3 million to meet " unexpected urgent refugee and migration needs in the Western Hemisphere" through the State Department's Bureau of Population, Refugees, and Migration.

The move to add military personnel along the border was criticized by humanitarian and civil rights groups, including the American Civil Liberties Union.

"People who have been forced to flee their homes and embark on arduous, dangerous journeys for the chance to seek legal protection in the U.S. should be met with compassion – not military troops," said Jonathan Blazer, director of border strategies for the ACLU. "President Biden has had years to prepare for the long-overdue end to Title 42, and to ensure that people fleeing violence can seek safety at the southern border in a humane and dignified manner. He has already announced his intention to impose an unlawful asylum ban reviving Trump policies he previously disavowed. Now he’s sending troops to the border at the eleventh hour, for political optics. He should instead be focused on creating a robust, efficient, and humane system to screen and welcome people in search of safety."

Meanwhile, U.S. Sen. Kyrsten Sinema sought create some distance between herself and the Biden administration, sending out a press release where she said "despite our repeated calls, the administration has failed to prepare and implement a workable plan for the end of Title 42."

"We’re bringing Arizona local leaders together to ensure our communities don’t suffer as a result of the administration’s inaction – keeping families safe and secure," Sinema said.