Rafael Carranza | Arizona Republic
The future of Title 42, an emergency public health rule that limits access to asylum at the U.S.-Mexico border, has become increasingly uncertain as elected officials in the U.S. seek to delay the repeal of the controversial policy or block it through the courts.
President Joe Biden's administration is set to do away with Title 42 on May 23, one of the last remaining pandemic restrictions still in effect. The policy has been used to turn away more than 1.7 million migrants since March 2020.
But in a hyper-polarized political climate and midterm elections looming, Title 42's implications on immigration and border enforcement have become the focus of a political debate even though its stated aim is to prevent the spread of COVID-19.
Elected officials in Arizona, one of the states that is most affected by the policy's consequences, are leading the conversation on whether to repeal, delay or keep Title 42 in place.
The prospect of repealing the public health rule by May 23 appears increasingly unlikely. A federal judge in Louisiana temporarily blocked the Department of Homeland Security from taking steps to wind down the implementation of Title 42.
U.S. District Judge Robert Summerhays from the Western District of Louisiana held a hearing Friday to decide whether to block the repeal of Title 42. He said he would issue his decision some time before May 23, but he has kept in place the temporary injunction.
The hearing stems from a lawsuit filed April 4 by Arizona Attorney General Mark Brnovich, along with 20 other Republican attorneys general. Brnovich is also a GOP candidate for the U.S. Senate seat held by Sen. Mark Kelly, D-Ariz.
The lawsuit argues on procedural grounds that the decision by the federal government under Biden to end Title 42 was arbitrary and capricious because it sidestepped a notice and public comment process.
"The Biden administration has little concern for maintaining public safety and even less for following administrative procedures," Brnovich said in a written statement after the hearing. "Our coalition of state attorneys general will continue fighting to preserve Title 42 with the hope of maintaining some accountability and sanity at our southern border."
Brnovich, who touts himself as a "national leader" on challenging Biden's immigration and border policies, also filed a separate lawsuit March 28 with 13 other Republican attorneys general against a final interim rule published in March.
That rule would allow DHS asylum officers to adjudicate asylum claims at the border, a role that falls on immigration judges under the U.S. Department of Justice. The lawsuit claims that would allow officers to lower standards and fast-track more asylum cases.
Brnovich is in lockstep with other Republican leaders at the state level.
Arizona Gov. Doug Ducey, along with Texas Gov. Greg Abbott, has been a vocal opponent of plans to do away with Title 42. He has deployed the National Guard to assist local law enforcement and has made several trips to the Arizona-Mexico border to criticize Biden's policies and urge him to keep Title 42 in place.
"What’s happening at the southern border is a national security crisis, a public safety crisis and a humanitarian crisis," Ducey said last month. "The safety of our nation depends on effective policies like Title 42. Lifting it will severely impact our country, and the Biden administration must keep it in place."
On April 19, Ducey launched the American Governors' Border Strike Force, even though most of the states are not along the U.S.-Mexico border. Last week, his administration began busing asylum seekers from Yuma to Washington, D.C., mimicking a program Abbott launched last month.
Brnovich and Ducey are spearheading at the state level what Republicans are also doing in Congress. With midterm elections in November, Republicans have been unified in their messaging on the border, especially Title 42.
Lisa Sanchez, an assistant professor at the University of Arizona who teaches about immigration and border security, has followed the debate over Title 42. She said the policy brings together a lot of salient issues for Republicans, ranging from health to the economy and, above all, border security.
"The security frame is very, very effective in terms of, you know, just sort of political psychology. So we know that. So one reason that Republicans obviously use it is for that reason," Sanchez said.
But it's not just Republicans in Arizona speaking out against the repeal of Title 42.
Hours after the April 1 Centers for Disease Control and Prevention announcement that it was no longer necessary to turn away migrants under Title 42, Sens. Kyrsten Sinema and Mark Kelly, both Arizona Democrats, issued a joint written statement pushing back against the move. They've continued to speak out against it.
"We've spent billions of dollars and we still have a crisis on the southern border," Kelly said Friday. "It's a big mess. And to lift Title 42 without a plan ... my analysis of this is it will result in chaos on top of a crisis."
Since Sinema and Kelly's initial letter, a number of other moderate Democrats have spoken against repealing Title 42 on May 23, while Republicans remain uniformly opposed to it as well.
Sinema questioned Homeland Security Secretary Alejandro Mayorkas during a May 4 congressional hearing, a week after he issued a memo outlining a six-point strategy to prepare for the repeal of Title 42.
"While the contingency plan does discuss surging infrastructure, transportation and human capital to affected areas, I'm concerned that these resources will not be in place in time," Sinema told him during the hearing.
On May 7, Sinema and Kelly introduced legislation to delay the repeal of Title 42 two months after the expiration of the COVID-19 public emergency declaration and requires DHS to submit a plan to congress. Six Republican senators co-sponsored the bill, along with three other moderate Democratic senators.
U.S. Reps. Greg Stanton and Tom O'Halleran, both D-Ariz., introduced the companion bill in the House with three other Democrats and five Republicans. Stanton pressed Mayorkas at a congressional hearing about the department's plans to repeal Title 42.
"The plan outlined by DHS is not at all sufficient to handle what will come our way once Title 42 restrictions are lifted," Stanton said in a statement to The Arizona Republic. "And nothing that Secretary Mayorkas has said convinces me that DHS will be prepared in time — or even fully understands how overburdened Arizona communities, law enforcement and nonprofits already are."
Mayorkas continues to assert that the Department of Homeland Security is prepared to do away with Title 42 on May 23. The department has been working on plans to deal with an expected influx of migrants at the U.S.-Mexico border since September, he said.
"We understand the need to be already in place when Title 42 comes to an end. So that work is well underway, and has been well underway," he told Sinema.
The decision by Democrats such as Kelly and Sinema to push for the delay of repealing Title 42 disappointed and angered immigration advocates as well as some Democratic voters.
Arizona Justice for Our Neighbors provides legal aid for asylum seekers in Nogales, Sonora. Except for a brief period in 2021, most asylum seekers have been unable to claim asylum in this border city since Title 42 took effect in March 2020.
The group was one of 58 legal aid groups around the U.S. that filed an amicus brief in support of the Biden administration in the lawsuit that Brnovich filed to block the repeal of Title 42.
Alba Jaramillo, the group's executive director, said the elation that the asylum seekers she works with in Nogales felt when the May 23 deadline was announced has quickly given way to uncertainty.
She said she was let down by the response of Arizona's two senators, calling their bill to delay the repeal of Title 42 disgraceful. She strongly disputed their claim that there is no plan in place for the repeal of the policy.
"It is erasing us and it is pretending that we're not doing anything when in fact, we have been doing this for two years without the aid and assistance of elected officials," Jaramillo said. "So they're not listening. We are ready. And we have been ready for a long time."
While Republicans are united in calling to keep Title 42 in place, this policy has split Democrats. More progressive lawmakers like U.S. Rep. Raúl Grijalva, D-Ariz., continue to push for an immediate repeal and the reinstatement of asylum processing along the U.S.-Mexico border.
Tucson Mayor Regina Romero has been pushing for an immediate repeal. On April 25, she outlined her thoughts in a joint statement with Brownsville, Texas, Mayor Troy Mendez.
"It is the smart thing to do and it is the right thing to do. A fair and humane immigration system should be a priority for all of our leaders, not just those such as us who see the effects of a broken system every day," they said.
That's a sentiment echoed by Esther Duran Lumm, a lifelong Democrat and the co-chair for the Uncage and Reunite Families Coalition. The Phoenix-based group helps asylum seekers arriving in Phoenix arrange transportation.
Duran Lumm, 77, said she has been a Democrat since she turned 18 and has served in her local precinct and the state committee. She said she was disillusioned with the stance that Sinema, Kelly, Stanton and O'Halleran have taken on Title 42.
"Let's face it, they're worried about their offices, especially in this midterm election coming up. And so they're going to say whatever it is to make sure that they are supported by the other side," she said. "And that's very disappointing because, you know, we elected them to do a job. And in doing that job, they have to follow the law. The law is being violated and has been violated."
But her disillusionment does not mean she will not vote for them. Duran Lumm said Kelly is running unopposed in the primary, and while she may not agree with his posture on Title 42, she said she's unlikely to vote for any of the Republican candidates.
Sanchez, the professor at the University of Arizona, said she's not surprised by the stance that both Republicans and moderate Democrats have staked out on Title 42.
"So what that means is simply that they're going to go with what will get them elected, what voters want, and that's how it's set up," she said.
Jaramillo of Arizona Justice for Our Neighbors said she's awaiting the decision by the federal judge in Louisiana on whether he will block the repeal of Title 42. Doing so, she said, would continue to harm the asylum seekers she works with.
"I don't want to see another year go by. ... It takes an average of a year for a case to actually reach the Supreme Court, where asylum seekers are being forced to remain in Mexico being subject to all of the harms because of this policy," she said. "This policy is killing people. It is harming migrants, and it is unnecessary."