A Trump-era rule was supposed to deter border crossings. They’re rising instead.


WASHINGTON — U.S. Customs and Border Protection is reporting an increase in encounters with migrants on the southern border as recent court rulings reignite debate over President Joe Biden’s use of a Trump-era public health order to expel most of those seeking to enter the United States.

The administration reported slightly fewer than 165,000 encounters with migrants in February, about 10,000 more than it reported in January, when encounters had begun to decline. The increase was driven by more than 126,000 encounters with single adults, the most in a single month since 2006. It came even as encounters with families seeking to enter the U.S. fell for the second straight month, to 26,582, the lowest point in a year.

Experts say the figures offer evidence that the pandemic-era health order, known as Title 42, is leading to more border encounters, not less, since single adults who are expelled are simply returning to try and cross again.

Nearly a third of the single adults stopped by Border Patrol — 30 percent — tried to cross at least once in the 12 months prior, CBP reported. That was more than double the average rate at which Border Patrol encountered repeat crossers from fiscal years 2014 to 2019. The Trump administration issued the controversial health order in 2020, arguing it was necessary to combat the spread of COVID-19.

Under the rule, migrants are denied the opportunity to plead their asylum case. The administration has used Title 42 to expel migrants 426,819 times so far in the fiscal year that began Oct. 1, according to CBP data.

“This kind of gets to some of the issues that we’re continuing to see with Title 42, which is that since it was implemented, it has continued to incentivize migration of single adults,” said Jessica Bolter, an analyst at the nonpartisan Migration Policy Institute. “I think this month is one of the clearest examples of that.”

The Biden administration has argued the rule is a key tool in handling a surge of migration to the southern border that started in spring 2021. It has also sought to scale it back some by excluding unaccompanied children — a move that Texas’s Republican leaders have so far successfully sued to block.

The Centers for Disease Control says it is reviewing the policy and will decide by the end of March whether to keep using it to expel single adults and families.

South Texas officials have lined up in favor of extending the Trimp-era order, noting the influx.

“We are only five months into the fiscal year and already on track to hit 1 million crossings at the southern border in March,” said U.S. Rep. Tony Gonzales, a San Antonio Republican. He called Title 42 “one of the only effective measures in our Border Patrol agents’ tool belts.”

U.S. Rep. Henry Cuellar, a Laredo Democrat and early critic of Biden’s handling of the migration surge, said Border Patrol agents have told him they fear ending the policy will spark another wave.

“It’s going to be almost a green light for people to say, now’s the time to come in, because they’re not using Title 42,” Cuellar said. The 17-year incumbent is in a Democratic primary runoff with progressive immigration attorney Jessica Cisneros, who has called for an end to Title 42.

Other members of Biden’s own party have ratcheted up pressure on the president to scrap the policy in recent days, pointing to a significant decline in coronavirus cases that were the basis for the order, as well as Biden’s campaign promises to restore the asylum system they say it undermines.

Senate Majority Leader Chuck Schumer earlier this month renewed calls for Biden to end the order, saying “now’s the time to stop the madness.”

“The continued use of Title 42 has created life-threatening conditions for vulnerable migrants, enriched human smugglers, and significantly increased the number of dangerous border crossings,” the New York Democrat and other senators from his party said in a statement.

“We all watched in horror as thousands of Haitian families, including infants, were returned to Haiti without the opportunity to seek asylum in Del Rio, Texas, and remain concerned as thousands of Haitians have been expelled from the United States in the months since,” the statement said. “Turning away families seeking protection from torture or persecution is not who we are.”

Their calls came after a federal appeals court panel in D.C. ruled the administration must stop using the policy to expel migrant families to countries where they may face persecution or torture. The appeals panel upheld the policy, but said it is “far from clear” it serves “any purpose.”

That same day, a federal judge in Texas ruled that the administration’s decision not to apply Title 42 to unaccompanied children was “arbitrary” and “capricious.” Texas had argued in its lawsuit that the increased migration burdened the state with health care, criminal justice and other costs.

“Border states such as Texas now uniquely bear the brunt of the ramifications” of the policy, U.S. District Judge Mark Pittman wrote in his ruling.

In response, the CDC, which first issued the 2020 public health order, issued a new memorandum terminating the government’s ability to use it to expel children.

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