As a legal challenge to the lifting of Title 42 at the southern border moves through court, Department of Homeland Security officials told the Senate Homeland Security and Governmental Affairs Committee last Thursday that they have plans underway to safely and efficiently process an expected surge of people seeking entrance to the country.
Since March 20, 2020, migrants and asylum-seekers have been turned away at the southern border because of the Department of Health and Human Services’ emergency regulation to prevent entry when there is “serious danger” of introducing a communicable disease into the United States. The Centers for Disease Control and Prevention’s implementation of Title 42 allows the Department of Homeland Security to make exceptions on “consideration of significant law enforcement, officer and public safety, humanitarian, and public health interests.” The order did not apply to those presenting valid travel documents at a port of entry, including U.S. citizens and lawful permanent residents.
On April 1, CDC announced that as of May 23 the Title 42 public health order will be terminated “to enable DHS time to implement appropriate COVID-19 mitigation protocols, such as scaling up a program to provide COVID-19 vaccinations to migrants and prepare for resumption of regular migration under Title 8.”
“After considering current public health conditions and an increased availability of tools to fight COVID-19 (such as highly effective vaccines and therapeutics), the CDC Director has determined that an Order suspending the right to introduce migrants into the United States is no longer necessary,” the agency said in a statement. “With CDC’s assistance and guidance, DHS has and will implement additional COVID-19 mitigation procedures.”
Twenty-one states filed a lawsuit in response claiming that the CDC’s move violates the Administrative Procedures Act and would have adverse impacts. A hearing is scheduled for Friday on the states’ request for a preliminary injunction to block the administration from stopping use of the Title 42 order.
Acting Assistant Secretary for Border and Immigration Policy Blas Nunez-Neto at DHS’ Office of Strategy, Policy, and Plans told lawmakers that “migratory surges along our southwest border have, unfortunately, become a regular occurrence over the past decade under presidents of both parties.”
“Over this period, we have seen as well fundamental changes to the nature, scope, and demographics of irregular migration, even as our encounters along the border have increased to unprecedented levels this year,” he said. “…For decades, the vast majority of individuals encountered at the southwest border were single adults from Mexico, Guatemala, El Salvador, and Honduras. Over the past two years, though, we have seen an unprecedented increase in migration from countries we have not traditionally encountered along our southwest border, which accounted for more than half of our unique encounters thus far this year when recidivism is factored in. In fact, roughly 25 percent, a full quarter of our encounters are from Venezuela, Nicaragua, and Cuba this year — countries that we generally cannot return people to in large numbers due to the dictatorships that are in power. These changes dramatically affect our ability to efficiently and humanely apprehend, process, and remove migrants encountered at the border. Our system was simply not designed historically to handle these flows.”
Nunez-Neto said that despite these challenges DHS “has taken concrete steps since last fall” to prepare for the CDC lifting its Title 42 order.
The plan that was developed rests on six main pillars. The first is surging resources to support border operations. “This includes deploying more than a thousand additional law enforcement personnel to the border, constructing additional soft-sided facilities, and implementing robust public health protocols at the border, including our new vaccination program for migrants processed under Title 8,” Nunez-Neto continued.
The second pillar is “increasing the processing efficiency within our border management and immigration systems — this includes really innovative work to create digital A-Files and electronic notices to appear, which will realize substantial savings in time at the border, as well as in en route processing and our Enhanced Central Processing Center model.”
The third pillar, Nunez-Neto said, is “our ongoing work to administer consequences for unlawful entry.”
“We will and are committed to firmly but fairly enforcing our immigration laws,” he told senators. “And this includes applying expedited removal to all noncitizens who are, in fact, removable. It includes focusing prosecutions on noncitizens whose conduct warrants it, including those who are seeking to evade capture at the border. And it includes our efforts to speed up the asylum system through executive action for those who are not detained through the Asylum Officer Rule and through the Dedicated Docket.”
The fourth pillar is “our ongoing work to bolster NGO capacity and support border communities by working closely with and providing support for NGOs and community stakeholders.” The fifth pillar “involves our efforts to target and disrupt the transnational criminal organizations and the human smugglers who spread misinformation and put migrants in harm’s way for profit.”
And the sixth and final pillar, Nunez-Neto said, “involves our efforts to work regionally and collaborate with our partners in Mexico, as well as throughout the hemisphere, to enhance legal avenues for protection and opportunity throughout the hemisphere but also to ensure that partner governments are, in fact, enforcing their borders and not just letting people pass through on their way north.”
FEMA Region 3 Administrator MaryAnn Tierney, who on April 29 completed her assignment as a senior coordinating official for DHS’ Southwest Border Coordination Center, told senators that the SBCC “has implemented measures to secure additional resources via agreements with other federal agencies and contracts across three lines of effort: transportation, facilities, and personnel.”
“This includes expanding holding ground and air transport capacity, increasing utilization of law enforcement officers from across the federal government, adding contract security guards and processing support staff, and expanding medical services,” she said. “These efforts allow CBP officers and agents to perform their vital national security mission as opposed to processing and other administrative work.”
“Second, the SBCC and Customs and Border Protection field leadership have established recurring and operationally focused engagements with state, local, tribal, and law enforcement officials to share information, understand challenges, and coordinate actions on the ground,” Tierney continued. “Additionally, in April, FEMA awarded $150 million in humanitarian funding to the National Board for the Emergency Food and Shelter Program. The National Board will award these funds to eligible state and local governments and nonprofit organizations that have aided or will aid individuals and families encountered by DHS at the southern border. These funds can be used for food, lodging, and transportation costs. Organizations will have the opportunity to request reimbursement on a quarterly basis, as well as to request advance funding.”
Third, she said, DHS launched the Southwest Border Technology Integration Program “to digitize and automate noncitizen processing,” which is believed to have saved “over 20,000 hours of agent time already.”
“Today, over 70 percent of Title 8 cases are reviewed and signed digitally by Customs and Border Protection, which saves up to 14 minutes per case,” Tierney said. “…Additional efficiencies are being implemented specifically targeted at expedited removal so noncitizens encountered at the border can be quickly removed. Everything possible is being done to enable officers and agents to spend less time processing arrests and more time in the field.”
“Fourth, the SBCC is rapidly developing and testing innovative models that will co-locate Customs and Border Protection, ICE, HHS, and nongovernmental organizations at enhanced centralized processing centers to eliminate inefficiencies and process noncitizens. This model will allow CBP to swiftly triage noncitizens and encounters based on risk, ensuring that higher-risk individuals are held in secured, hardened facilities and until they are placed in detention pending expedited removal.”
And fifth, Tierney said, the SBCC is working to alleviate overcrowding at CBP facilities by employing mobile en route processing.
“Border Patrol is outfitting buses with necessary technology to support processing noncitizens while in transit. CBP can move noncitizens out of their facilities faster while retaining the integrity of biometric and biographic screening processes and ensuring noncitizens apprehended at the border are placed expeditiously into removal proceedings,” she said. “Ultimately, the goal of these steps and other efforts focused on longer-term strategies to create lasting, scalable, repeatable structures to respond to irregular migration events.”
Customs and Border Protection Acting Chief Operating Officer Benjamine ‘Carry’ Huffman told the committee that CBP “remains the most humanitarian law enforcement agency in the country,” stressing that “our border protection mission and ethos necessitate that we provide lifesaving rescues, shelter, medical treatment, nourishment, and clothing to those we encounter.”
“CBP’s operational response will be, as it is now, grounded in three key principles: first, enforce the law and implement administrative policies; second, ensure individuals in our custody are provided care and afforded rights; and third, work collaboratively with our interagency and private sector partners,” he said.
CBP “will continue to utilize our immigration authorities under Title 8, as we have done throughout our agency’s history,” including “a range of enforcement options to hold individuals accountable for entering the U.S. illegally, including placing individuals in appropriate removal proceedings,” Huffman added.
“They also allow noncitizens appropriate access to make asylum claims and provide for urgent port of entry humanitarian parole on a case-by-case basis, which brings me to our second principle: the commitment to provide care and affording rights to individuals in our temporary custody. From the moment of initial contact with an individual, CBP procedures are designed to identify the correct processing pathway for that person, including appropriate options for those in vulnerable populations.”
CBP is expanding temporary holding capacity, he noted, increasing use of transportation to take migrants away from overcrowded sectors for processing, and providing additional medical resources “to protect the health and safety of migrants and, by extension, our personnel and our communities.”
Stressing the importance of interagency partnerships in the effort, Huffman said that CBP “is making numerous preparations to ensure we can scale our operations as necessary to respond to the areas of greatest need.”
“While I’m here today representing one agency, I cannot stress enough the importance of Congress’ continued support to the missions of not only CBP, but also ICE, USCIS, FEMA, HHS, the Department of State, the Department of Justice, and others. We are all part of a great number of efforts collaborating across the immigration spectrum,” he said.
“As evidenced by all the witnesses present, collaboration is key and support from Congress is vital. The border has always been a dynamic and complex environment. For CBP, we will continue to do our part in enforcing the law, ensuring individuals are properly cared for, and being a trusted partner to all others entities working on this effort.”