The Biden administration is expected by May 23 to end the asylum limits that were put in place at the U.S.-Mexico border to prevent the spread of COVID-19, according to people familiar with the matter.
The decision, not yet final, would halt use of public health powers to absolve the United States of obligations under American law and international treaty to provide haven to people fleeing persecution, and would apply to all asylum-seekers.
Ending the limitations in May would allow for time to prepare at the border, the people said. But the delay runs against the wishes of top Democrats and others who say COVID-19 has long been used as an excuse for the U.S. to get out of asylum obligations.
It also raises the possibility that more asylum-seeking migrants will come to the border at a time when flows are already high. The Department of Homeland Security said Tuesday that about 7,100 migrants were coming daily, compared with an average of about 5,900 a day in February, and are on pace to match or exceed highs from 2021, 2019 and other peak periods.
The U.S. Centers for Disease Control and Prevention extended its asylum-blocking powers for two months in late January, near the height of the omicron variant. The authority is up for renewal this week, but officials have not formally decided to terminate it yet and an announcement is expected in the next few days.
The people familiar with the plans saw a draft report that has not been finalized and they spoke to The Associated Press on condition of anonymity to discuss the plans.
President Joe Biden on Wednesday declined to discuss his administration’s plans, telling reporters at the White House, “We’ll have a decision on that soon.”
The limits went into place in March 2020 under the Trump administration as coronavirus cases soared. While officials said at the time that it was a way to keep COVID-19 out of the United States, there always has been criticism that the restrictions were used as an excuse to seal the border to migrants unwanted by then-President Donald Trump.
It was perhaps the broadest of Trump’s actions at the border to restrict crossings and crack down on migrants. The health order has caused migrants to be expelled from the United States more than 1.7 million times since March 2020 without a chance for them to request asylum.
The limits took effect over the objections of CDC officials, and Dr. Martin Cetron of the Division of Migration and Quarantine refused the order to begin its use. He said there was no public health basis for such a drastic move, the AP reported. But then-Vice President Mike Pence ordered the CDC’s director to use the agency’s emergency powers and it went into effect.
The limitations on seeking asylum became more difficult to defend on scientific grounds as mask mandates were lifted, vaccination rates climbed, and COVID-19 rates dropped among migrants crossing from Mexico.
President Biden, who has rolled back some of Trump’s other more restrictive policies and reinstated higher asylum figures, has taken increasing criticism for keeping the policy.
Homeland Security officials, Senate Majority Leader Chuck Schumer of New York and other top Democrats were increasingly vocal about wanting to end so-called Title 42 authority, named for a 1944 public health law to prevent communicable disease.
Schumer called it “perplexing that the (CDC) continues to recommend the extended use of this draconian policy at the border, contradicting the overwhelming signs of America’s pandemic recovery under President Biden’s leadership.” His comments were in a joint statement this month with Democratic Senators Cory Booker and Bob Menendez of New Jersey, and Alex Padilla of California.
Not all Democratic elected officials agreed, including some from border and swing states. Senators Mark Kelly and Kyrsten Sinema, both Arizona Democrats, sided with Republican leaders to say Title 42 should remain until U.S. border authorities were prepared for sharp increases in new arrivals.
And they’re not. Homeland Security officials said Tuesday they were planning for as many as 18,000 arrivals daily, an astounding number that they cautioned was simply to prepare for all possible outcomes, not projections.
But there has been no major change to how migrants are processed at the U.S.-Mexico border and no increase in holding facilities for them. The immigration court backlog continues to soar to more than 1.7 million cases.
While there is no aggregate rate for migrants, COVID-19 test results from several major corridors for illegal border crossings suggest it is well below levels that have triggered concerns among U.S. officials.
In California, 54 of 2,877 migrants tested positive in the first two weeks of March, according to the state Department of Social Services. That’s a rate of 1.9%, down from a peak of 28.2% on January 8.
In Pima County, Arizona, which includes Tucson, the seven-day positivity rate among migrants didn’t exceed 1.3% in early March. The positivity rate among 5,300 migrants tested last month at the Regional Center for Border Health near Yuma, Arizona, was 0.1%.
McAllen, Texas, the largest city in the busiest corridor for illegal crossings, has a higher rate among migrants — 11.3% for the week ending March 16 — but it has been consistently lower than the general population.
Critics say Title 42 has been an excuse to avoid asylum obligations under U.S. law and international treaty, buying Biden time to create the “humane” asylum system that he promised during his 2020 campaign.
Justin Walker, a federal appeals court judge in Washington, wrote this month in an order restricting the policy that it was “far from clear that the CDC order serves any purpose” for public health. Walker, who was appointed by Trump, noted that the Biden administration has not provided detailed evidence to support the restrictions.
“The CDC’s order looks in certain respects like a relic from an era with no vaccines, scarce testing, few therapeutics, and little certainty,” Walker wrote for a three-judge panel.
CDC Director Dr. Rochelle Walensky noted falling rates when she ended asylum limits on unaccompanied child migrants on March 11, while keeping them for adults and families with kids. In August, U.S. border authorities began testing children traveling alone in their busiest areas: Positives fell to 6% in the first week of March from a high of nearly 20% in early February.