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Last Updated: May 21, 11:58:13PM ET

Biden administration faces new legal hurdles at border as Title 42 ends

DHS Secretary Alejandro Mayorkas called a federal judge's order "very harmful."

May 12, 2023, 10:52 AM

The Biden administration on Friday faced new legal hurdles to its plans to manage a migration crisis as Title 42 pandemic-era border restrictions came to an end Thursday night.

PHOTO: A migrant mother holds her daughter as she asks U.S. Customs and Border Protection officials about new asylum rules at the San Ysidro Port of Entry, May 11, 2023, in Tijuana, Mexico.
A migrant mother holds her daughter as she asks U.S. Customs and Border Protection officials about new asylum rules at the San Ysidro Port of Entry, May 11, 2023, in Tijuana, Mexico.
Gregory Bull/AP

Judge blocks quick release plan

A federal judge in Florida late Thursday temporarily blocked U.S. Customs and Border Protection from releasing migrants without a formal notice to appear in court.

The parole authority CBP uses to release migrants quickly comes with requirements to report back to authorities, even if no court date has been set.

Homeland Security Secretary Alejandro Mayorkas sharply criticized the ruling by Judge T. Kent Wetherell in an interview Friday morning with ABC "Good Morning America" co-anchor George Stephanopoulos.

"This is a harmful ruling and the Department of Justice is considering our options," Mayorkas said.

PHOTO: Secretary of Homeland Security Alejandro Mayorkas speaks during the daily news briefing at the James S. Brady Press Briefing Room of the White House, May 11, 2023, in Washington, D.C
Secretary of Homeland Security Alejandro Mayorkas speaks during the daily news briefing at the James S. Brady Press Briefing Room of the White House, May 11, 2023, in Washington, D.C. Mayorkas took questions from reporters about the expiration Title 42.
Anna Moneymaker/Getty Images

ACLU lawsuit

Separately, the American Civil Liberties Union and other immigrant advocates filed a lawsuit challenging the new Biden administration restrictions on asylum taking effect Friday.

"People fleeing persecution have a legal right to seek asylum, no matter how they reach the border," litigation chief Melissa Crow with the Center for Gender & Refugee Studies said in a statement. "Our asylum system was designed to protect people fleeing imminent threats to their lives, who do not have the luxury of waiting for an elusive appointment or for an application to be adjudicated in a country where they are in danger."

PHOTO: A Border Patrol agent speaks with migrants after they got off a bus at a processing center, May 11, 2023, in Brownsville, Texas.
A Border Patrol agent speaks with migrants after they got off a bus at a processing center, May 11, 2023, in Brownsville, Texas.
Andrew Caballero-Reynolds/AFP via Getty Images

The new limits on asylum target migrants who cross illegally between federal southwest border check points.

Those non-Mexicans who do not apply for asylum elsewhere will face expedited deportation.

PHOTO: A Border Patrol stand by as migrant children and families arrive at a processing center, May 11, 2023, in Brownsville, Texas.
A Border Patrol stand by as migrant children and families arrive at a processing center, May 11, 2023, in Brownsville, Texas.
Andrew Caballero-Reynolds/AFP via Getty Images

The Department of Homeland Security has braced for an expected surge of migration timed to the end of the controversial pandemic protocols, under Title 42 of the U.S. Code, that allowed for the rapid expulsion of millions of migrants.

"And now we are using our immigration authorities, our traditional immigration authorities, that deliver tougher consequences for people who cross the border illegally," Mayorkas said.

Title 8 of the U.S. Code is traditional immigration law. And while it does allow for expedited deportations, migrants processed under these laws have typically been afforded more time to make an asylum claim.

Part of the Biden administration's plan involves ramping up the deportation process and imposing penalties on those who try to reenter the U.S. illegally.

The administration has also created new, but limited, routes for migrants to obtain legal status from outside the U.S. A parole process for Cubans, Haitians, Venezuelans and Nicaraguans offers temporary status and the chance to apply for asylum for up to 30,000 qualified migrants.

"We have built lawful, safe and orderly pathways for them to come to the United States," Mayorkas said. "They are going to meet tough consequences if they arrive at our border irregularly."

No migrant surge as expected, officials say

A chief architect of Biden administration border policy said Friday the end of Title 42 has so far not resulted in the massive surge in migration many expected.

"Overnight, we saw similar patterns to what we've seen over the past several days," Assistant Secretary for Border and Immigration Policy Blas Nuñez-Neto told reporters Friday. "We continued to encounter high levels of non-citizens at the border but we did not see a substantial increase overnight or an influx at midnight."

However, officials remain concerned that the recent court order from a federal judge in Texas could put Border Patrol stations far over capacity. Nuñez-Neto echoed Mayorkas in saying that the ruling will be "harmful" for non-citizens and Border Patrol agents alike.

"We will comply with the court order and we are also assessing our next steps." Nuñez-Neto said. " But taking a step back, the lawsuits we are facing -- frankly from both sides of the aisle -- really clearly demonstrate just how fundamentally broken our immigration system is."

In a move that could help relieve some capacity issues, ICE is adding thousands of detention beds now that pandemic restrictions have lifted.

"These new COVID mitigation protocols will eliminate the requirement that ICE perform COVID tests on all detainees at intake, transfer or release, which will allow us to process detained non-citizens much more quickly and better manage our detention bed space," Nuñez-Neto said.

Further, CBP One app appointments are now expanded to 1,000 per day, although that only accounts for a fraction of those who have sought to cross the border on a daily basis since Biden took office.

Separate legal action led by the state of Texas is also challenging the DHS plan to parole Haitian, Cuban, Nicaraguan and Venezuelan migrants into the U.S.

Nuñez-Neto said it was "unfortunate" that Texas is challenging the program despite benefiting from the reduction in migration from those countries, calling the state's reasoning "purely political."

State Department official Cheryl L. Fernandes with the Bureau of Population, Refugees and Migration said the rollout of the administration's new regional processing centers continues along with additional resources to be provided to migrants online.

"Once fully operational, this initiative will make it easier for migrants to access lawful pathways from where they are and help them avoid putting their lives and their life savings in the hands of criminal actors," Fernandes said.

Asked by ABC News why the processing centers were not set up earlier in the administration, Fernandes did not go into specifics, but said the initiative is "new and innovative" so they wanted to make sure they got it right.

"It's a first of its kind initiative across the hemisphere," Fernandes said. "And it's something that we want to make sure we roll out properly and in the right sequence. So, we're working with our partners to make sure that we can have that successful rollout."