WASHINGTON — U.S. officials are quietly preparing for what they think could be the biggest surge in traffic at the southern border in decades if a Covid restriction that has blocked most migrants for almost two years is lifted Thursday.
On a call this week with senior Department of Homeland Security officials, Secretary Alejandro Mayorkas asked whether the department was prepared for a worst-case scenario in which 350,000 to 400,000 migrants cross the border in October, according to two DHS officials familiar with the conversation.
A number that high would nearly double the 21-year record reached in July, when more than 210,000 migrants crossed the border.
The two DHS officials stressed that the estimate is not based on internal intelligence or calculations, saying it is meant to prepare the agency for what could be an overwhelming number of migrants who cross if a court order that lifts the Covid restriction, known as Title 42, takes effect at the end of the week, as is possible.
U.S. District Judge Emmet Sullivan ruled Sept. 16 that use of Title 42, a Centers for Disease Control and Prevention authority implemented by the Trump administration to mitigate the spread of Covid-19 in March 2020, did not give the Biden administration the authority to block asylum-seekers from crossing the U.S.-Mexico border.
Sullivan said his order, which he issued in response to a lawsuit by advocacy groups, would be effective in 14 days, meaning at some point Thursday.
The Biden administration has appealed the ruling and may still appeal to the Supreme Court if the U.S. Circuit Court of Appeals for Washington, D.C., does not intervene to stop it from taking effect.
Recently, more than 25,000 Haitian migrants arrived in Del Rio, Texas, in a single week, taking DHS by surprise and drawing border agents into the role of crowd control. Images of Border Patrol agents on horseback trying to stop Haitians from crossing the river drew sharp public criticism and led to an internal investigation.
Under Title 42, the Trump administration blocked most asylum-seekers from entering the U.S. and turned them back into Mexico, regardless of their nationalities.
The Biden administration lifted the policy for children who arrived unaccompanied, but it kept it for families and single adults.
In recent months, however, the majority of families and some single adults have been allowed to stay to claim asylum simply because Mexico lacked the capacity to take them back.
“Given that the administration was already this summer allowing most families to seek asylum and has now been in power for eight months, there’s no reason why there needs to be any further delay ending Title 42,” said Lee Gelernt, lead counsel in the litigation for the American Civil Liberties Union, which sought to stop the government from using Title 42 to block families seeking asylum.
A spokesperson for DHS did not respond to a request for comment.
Sullivan’s order would stop the Biden administration from expelling families under Title 42, allowing them instead to stay in the U.S. while they wait for their day in court to make asylum claims. Single adults, who were not part of the lawsuit brought before Sullivan, would remain subject to Title 42.
The Biden administration had considered lifting Title 42 altogether by the end of July. Some U.S. officials feared doing so would trigger a “catastrophic” migrant surge, and it was not lifted.
Now, the two DHS officials familiar with the matter say, the agency is again concerned about a surge, particularly if migrants misinterpret the change in policy as a signal that the border is open and that they will be allowed to stay in the U.S. regardless of the outcomes of their asylum cases.
Biden administration officials have defended the use of Title 42 for public health reasons. Mayorkas recently said on MSNBC, “It is currently our government’s intention to continue to exercise our Title 42 authority in light of the public health imperative as determined by the Centers for Disease Control.”
The international aid agency Oxfam, another of the advocacy groups suing the government, said most migrant families are deciding to come to the U.S. because of poor conditions in their home countries, not because they are paying close attention to U.S. policy.
If the administration and the courts continue to uphold the policy, said Noah Gottschalk, Oxfam America’s global policy lead, “there is a very real risk … of doing very serious harm to the global refugee system that was established after World War II in the aftermath of the Holocaust and the rejection of people who were fleeing the Holocaust.”
“It’s important to recognize that’s why the international asylum system exists,” he said.