A federal judge said Tuesday that a controversial pandemic-era policy known as Title 42 is unlawful and must end. The policy has been used widely by immigration officials during the pandemic — roughly 2.4 million times — to expel migrants from the United States amid a historic level of encounters in the U.S.-Mexico border.
The Biden administration now has less than five weeks to come up with a plan to roll back the policy that has largely defined the realities of immigration in the U.S. for the past two and a half years. U.S. District Court Judge Emmet Sullivan allowed a stay on his order until Dec. 21 to allow the government time to prepare.
Advocates, attorneys and officials within the migrant community in San Diego and Tijuana met the news with relief and skepticism. Many said they are waiting to see exactly how the policy change plays out locally.
“I just don't understand why they need more time. They've had almost two years to think about this,” said Father Pat Murphy, director of the Casa del Migrante shelter in Tijuana.
Title 42 was first implemented by the Trump administration at the start of the COVID-19 pandemic to prevent spread of the virus in the U.S., but critics say the policy has been used in practice to keep migrants from entering the U.S. despite a legal obligation to provide asylum to those who qualify.
Under the policy, immigration officials can turn away migrants at ports of entry or expel them from within the U.S. back to Mexico or their country of origin. Immigration advocates say the policy has led to thousands of migrants waiting in border cities including Tijuana where they’ve endured attacks and exploitation.
The U.S saw a record-breaking number of encounters with migrants — nearly than 2.4 million — at the southern border in the last fiscal year. In the San Diego Sector, encounters reached nearly 260,000 in fiscal year 2022.
Critics of Title 42 say the policy has driven repeated crossing attempts, as well as deaths among those who try to climb the border wall, cross through the open desert along the border or sail up the coast in their attempt to enter the U.S.
Until the Dec. 21 deadline, U.S. immigration officials will continue to use Title 42 to expel single adults and migrant families from the country, DHS said in a statement.
“People should not listen to the lies by smugglers who will take advantage of vulnerable migrants, putting lives at risk,” the statement says. “The border is closed, and we will continue to fully enforce our immigration laws at the border.”
Politicians and officials have worried over a potential increase in the number of migrants who arrive at the U.S.-Mexico border to ask for asylum after the rollback of Title 42. In May, the Department of Homeland Security said it expected up to 18,000 migrant arrivals at the border daily after the policy was undone.
For immigration advocates in San Diego and Tijuana, questions remain over how exactly the U.S. will process what could be thousands of migrants waiting to ask for asylum and whether this will be the final end of the policy.
"If this is truly the end of Title 42, we rejoice alongside the members of the migrant community, who for over two years have been forced to live under conditions of deprivation equivalent to a border wide death camp, in cities regarded by experts as among the most dangerous in the world,” said Nicole Ramos, director of the Border Rights Project from the binational legal nonprofit Al Otro Lado.
Al Otro Lado has represented migrants on both sides of the border over the course of the pandemic and Title 42’s implementation. Ramos said the policy has effectively put migrants in harm’s way while “exclud(ing) Black and brown migrants from the United States, and prevent(ing) them from accessing the legal process that could save their lives."
Maria Chavez, an immigration lawyer based in San Diego, said the judge’s order to repeal Title 42 is long overdue.
“The pandemic is now endemic. The president himself said so, so it should have been taken away a long time ago. And any quote-unquote floodgates or any issues that come about are because of the U.S. government's own inaction and refusal to allow asylum seekers into the U.S.,” Chavez said.
Chavez helped to establish San Diego County’s Immigrant Legal Defense Program earlier this year, which provides free legal services to immigration detainees within the county. Though immigration legal services are always in high demand, Chavez said “the San Diego legal community is ready and willing with open arms to help as many folks as we can.”
Migrant shelter leaders and officials in Tijuana estimate up to 14,000 migrants are currently in the Mexican border city waiting to ask for asylum in the U.S.
Enrique Lucero, head of migrant affairs for Tijuana, said the news that the policy would be rolled back was met with “jubilation,” in particular among Venezuelan migrants at a recently established shelter. The city opened the shelter after seeing a wave of Venezuelan deportees who were expelled from the U.S. after trying to enter, the San Diego Union-Tribune reported.
“There was a jubilation, a lot of joy at the shelter there,” Lucero said. “What worries us most is how these requests are going to be processed because we have to remember that there is a backlog of many requests.”
Lucero said Title 42 caused a large backlog of migrants who have been waiting two and half years for the U.S. to reopen its asylum process. Now that Title 42 appears to be ending, Lucero said there could be confusion among migrants about how cases will be handled.
He’s worried that migrants who have settled in Tijuana will leave their jobs and homes to wait at ports of entry for the first opportunity to ask for asylum. Lucero said the U.S. needs to offer clear and fair guidance on how the cases will be handled.
Shelters in San Diego, too, are awaiting guidance from U.S. officials.
Catholic Charities Diocese of San Diego operates a temporary migrant shelter in the county. CEO Vino Pajanor hopes the Department of Homeland Security will coordinate with his organization to ensure migrants processed and released by authorities have a place to receive them.
In late September, the main shelters which receive migrants in San Diego County reached capacity, though officials say demand for beds has since gone down. Some migrants at the time were moved to homeless shelters or chose to live on the streets.
Pajanor said his agency has “finite resources” and needs to manage the number of migrants they receive daily in order to accommodate the need.
Murphy, director of Casa del Migrante shelter, said the migrants waiting in Tijuana deserve a fair chance at requesting asylum in the U.S. But even after years or months of waiting, many could find themselves without a legal path to asylum.
“People I think are still hooked on the American dream and I think the American dream is not for everybody, only for a reduced few,” Murphy said. “People have to start changing their way of thinking.”