Texas Republicans pushed Biden administration to keep rule that turns asylum-seekers away at the border

Families are turned away from making their asylum claims at the Paso del Norte International Bridge in November. The Biden administration is reportedly planning to end a policy that turns asylum-seekers away at the border. (Justin Hamel For The Texas Tribune, Justin Hamel For The Texas Tribune)

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WASHINGTON — The Biden administration on Friday ended a pandemic-era rule under which immigration authorities rapidly expel migrants who have crossed the border without letting them apply for asylum.

Democrats and civil rights organizations called the provision inhumane and said it violates the right to apply for asylum. But Texas Republicans in Congress called for the policy to remain as they said it is one of the only existing ways to deal with a rise in migrant border crossings.

The administration reportedly plans to end the rule, called Title 42, May 23. Once it’s lifted, migrants will be able to apply for asylum at the border without being quickly turned away.

The policy started under the Trump administration early in the pandemic. Fighting over the rule was amplified in the past week as the CDC deadline approached; the expected change comes as record numbers of migrants have crossed the border illegally since President Joe Biden entered office.

Immigration officials have expelled more than 1.7 million people using the rule. Most of the deportations occurred under the Biden presidency.

“The Border Patrol tell me that if it expires without a plan being put into place to allow them to handle this volume of migrants, they will simply lose control of the border,” U.S. Sen. John Cornyn said at a Wednesday press conference on the rule attended by more than 10 of his Republican colleagues.

Texas’ senior senator said Congress needs to change the country’s asylum laws and give law enforcement on the border “additional resources and tools.”

The Department of Homeland Security has created plans to handle a record surge in crossings once the rule is lifted, including one scenario in which 18,000 migrants pass the border in one day.

Democrats and several civil and human rights organizations have said the continued use of the rule flouts refugee protection laws and endangers people who are fleeing dangerous conditions in countries like Haiti by sending them back into harm’s way. They also say it has no health or scientific basis.

“In the two years it’s been in effect, Title 42 has had a devastating impact on people seeking safety in this country,” the American Civil Liberties Union wrote in a post on its website. “Since March 2020, the government has misused the health order to kick out people seeking asylum more than 1.7 million times.”

Cornyn spearheaded a letter on Tuesday to Homeland Security Secretary Alejandro Mayorkas and Health and Human Services Secretary Xavier Becerra asking the administration to keep the rule, arguing that it prevents Texas cities from becoming more overwhelmed by migrants and that federal authorities lack the facilities and resources necessary to handle a potential increase in crossings.

The letter was signed by most Republican members of the state’s congressional delegation alongside two Democratic U.S. Reps. who represent border districts: Henry Cuellar of Laredo and Vicente Gonzalez of McAllen.

"Until the Department of Homeland Security (DHS) provides border communities and local Customs and Border Patrol sectors adequate resources and a plan, we will once again be wholly unprepared to handle a surge in irregular migration at our Southern Border in a humane, safe, and orderly way," Gonzalez said in a Friday press release. “While I remain disappointed in the Administration’s failure to include our community in these decisions and refusal to acknowledge the real-life impact on South Texans, their approach is nothing we haven’t seen before."

Gonzalez represents Texas' 15th Congressional District but is running for election in the 34th district — another border district — after GOP-led redistricting made his current seat more competitive.

Republicans have focused on border security ahead of this year’s midterm election as they try to reclaim control of both chambers of Congress. Republicans in South Texas are championing strict border controls and a pro-police approach in an attempt to flip the traditionally Democratic region.

On Tuesday, the Congressional Hispanic Caucus, which includes several Texas representatives, sent a letter to Mayorkas, Becerra and other Biden administration officials asking for the end of Title 42 because of its “lasting impacts,” including the restriction of the right to apply for asylum.

“The CHC believes that Title 42 denies individuals the right to seek asylum and disproportionately impacts refugees fleeing persecution and violence from Latin American, African, and Caribbean countries, including LGBTQI+, Indigenous communities, and individuals less likely to be traveling with children,” the letter said.

Cuellar and Gonzalez are also members of the caucus, but neither signed the letter. Cuellar's office did not respond to a request for comment on the conflicting positions between the caucus and the Republican-led letter he signed.

“It’s past time to lift Title 42. Donald Trump originally put the policy in place because his administration had been looking for any excuse to keep any and all people out of this country,” U.S. Rep. Joaquin Castro, a Democrat from San Antonio who signed the letter, told the Tribune outside the House chamber. “It doesn't matter how many drones, how many Border Patrol agents, how much surveillance equipment you put at the border, [Republicans are] always going to say it's an open border.”

Federal courts have made several rulings over the legality of Title 42 that in some ways conflict. Attorney General Ken Paxton — who has consistently taken the Biden administration to court on a variety of topics, including COVID-19 rules and concerns over the border — won a case on March 4 in a federal district court to block the government from exempting unaccompanied minors from being expelled.

That same day, a federal appeals court made a separate ruling that said the government could not expel asylum-seeking migrant families under the rule if they would be sent back to countries where they could face persecution.

In Texas, Gov. Greg Abbott has taken border security into his own hands with the controversial Operation Lone Star, a multibillion-dollar initiative that has deployed thousands of National Guard troops and Texas Department of Safety troopers to arrest migrants suspected of illegally crossing the border on state trespassing charges.

The operation has come under scrutiny from national civil rights organizations and Democrats. Troops deployed for the operation have reportedly faced morale issues and poor working conditions, while statistics on the mission reveal a lack of clear success.

“If the federal government’s not going to do the job, I don’t think the state or Governor Abbott has got any alternative except to use the tools available to him and the state to protect our state,” Cornyn told the Tribune on Wednesday. “I don’t blame him … We are the front line there, with 1,200 miles of common border with Mexico.”

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