Mayorkas prepares to end Title 42 pandemic policy at border despite backlash, setbacks

Alejandro Mayorkas wears a mask while sitting and speaking into a microphone
Secretary of the Department of Homeland Security Alejandro N. Mayorkas at a news conference in February.
(Myung J. Chun / Los Angeles Times)
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Homeland Security Secretary Alejandro N. Mayorkas on Thursday defended the administration’s plan to rescind pandemic-related border restrictions on those seeking asylum amid backlash from lawmakers and a federal judge’s restraining order.

Mayorkas said the Biden administration is proceeding with a plan to end use of so-called Title 42 authority, a Trump-era policy started in 2020 that denies migrants a chance at asylum on the grounds of preventing the spread of COVID-19.

“We expect migrant levels to increase,” he told the House Judiciary Committee on Thursday, pointing to an ultimate need for comprehensive immigration reform. “We inherited a broken, dismantled system that is already under strain and is not built to manage the current levels and types of migratory flows. Only Congress can fix this.”


The Biden administration planned to end Title 42 authority on May 23 — an end date that is now in limbo after a federal judge temporarily halted the move.

The policy has been in effect since March 2020 and has been used to turn away migrants nearly 1.8 million times. The Centers for Disease Control and Prevention, which wields the power to lift or enact the authority, decided to cease the rule as it has eased many other pandemic mandates.

Lawmakers across the aisle rained down doubts regarding the agency’s ability to handle an influx of migrants if Title 42 were to end, and many said it could lead to a rise of drug smuggling and a weakened border.

Some Republicans called for Mayorkas’ resignation or impeachment, saying the secretary has failed to do his job.

“You have more people coming in than ever and you’re removing fewer people than ever, and it’s because you have no plan,” Rep. Matt Gaetz (R-Fla.) said.

Rep. Steve Chabot (R-Ohio) said the southern border “is an unmitigated disaster.”

“It’s about to get a whole lot worse [with] this administration’s boneheaded decision to end enforcement of Title 42,” Chabot said.


Mayorkas maintained that his agency has provisions to “prepare for and manage any rise of any noncitizen encounters.”

“We knew [Title 42] was not going to be forever. We started planning and preparing a long time ago,” Mayorkas said.

Aaron Reichlin-Melnick, senior policy counsel with the American Immigration Council, supported the administration’s decision. “When you look at the last two years of Title 42, it becomes eminently clear that Title 42 was a failure,” he said in an interview.

Because it isn’t an immigration law, the policy carries no punitive consequences for illegally crossing the border. This means asylum seekers may attempt to cross the border multiple times, Reichlin-Melnick said.

This is compounded by asylum seekers’ desperation because they cannot return to their home countries and may believe remaining in northern Mexico is not an option either.

“So the rate of repeat crossings quadrupled under Title 42. And for some groups, it’s been even higher,” he said. “And in fact, government data suggests that there have been over 900,000 repeat encounters since Title 42 went into effect.”


Reichlin-Melnick added that Title 42 should not be used “if the CDC director doesn’t believe that there is a serious danger that COVID-19 will be introduced into the United States by migrants.”

“What we have to remember is that Title 42 is not an immigration policy. It is a public health policy. And one that everyone now agrees is largely unnecessary for public health,” he said.

U.S. District Judge Robert Summerhays in Louisiana scheduled a hearing May 13 for arguments on whether to block Title 42 from ending as planned.

Summerhays on Wednesday issued a restraining order on the administration’s rollback on the rule after Louisiana, Arizona and 19 other states sued to preserve Title 42 authority.

While the restraining order is temporary, the judge outlined a position that is sympathetic with those seeking to keep Title 42 in place.