The Biden administration is expected to end by May 23 the asylum restrictions imposed at the U.S.-Mexico border to prevent the spread of COVID-19, according to people familiar with the matter.
The decision, which is not yet final, will stop the use of public health powers to exempt the United States from obligations under US law and international treaty to provide refuge to people fleeing persecution, and will apply to all asylum seekers.
Ending the restrictions in May will allow time to prepare at the border, people said. But the delay is against the wishes of top Democrats and others who say COVID-19 has long been used as an excuse for the US to get out of asylum obligations.
It also creates the possibility that more asylum-seeking migrants will come to the border at a time when the flow is already high. The Department of Homeland Security said on Tuesday that about 7,100 migrants arrive daily, compared to an average of about 5,900 per day in February, and is on track to equal or exceed the highs of 2021, 2019 and other peak times .
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 omikron variant. Authorities are renewing this week, but officials have not yet formally decided to end it and an announcement is expected in the next few days.
The people familiar with the plans saw a draft report that was not 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 White House reporters: “We will have a decision on that soon.”
The limits came into effect in March 2020 under the Trump administration as coronavirus cases skyrocketed. While officials at the time said it was a way to keep COVID-19 out of the United States, there was always criticism that the restrictions were being used as an excuse to seal the border for migrants who were unwanted by then-President Donald Trump.
It was perhaps the broadest of Trump’s actions at the border to curb crossings and curb 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 seek asylum.
The limits came into effect on the objections of CDC officials, and dr. Martin Cetron of the Migration and Quarantine Division refused the order to start using it. He said there was no public health basis for such a drastic move, the Associated Press reported. But then-Vice President Mike Pence ordered the CDC’s director to use the agency’s emergency forces and it went into effect.
The restrictions on seeking asylum have become more difficult to defend on scientific grounds as mask mandates have been lifted, vaccination rates have risen and COVID-19 rates have fallen among migrants crossing from Mexico.
President Biden, who has rolled back some of Trump’s other more restrictive policies and restored higher asylum rates, has received increasing criticism for retaining those policies.
Homeland Security officials, Senate Majority Leader Chuck Schumer of New York, and other top Democrats have increasingly spoken out about the desire to end the so-called Title 42 authority, named after a 1944 Public Health Act to transfer to prevent diseases.
Schumer calls it “confusing that the (CDC) continues to recommend the widespread use of this draconian policy at the border, which contradicts 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 in saying that Title 42 should remain in place until U.S. border authorities were prepared for sharp increases in new arrivals.
And they are not. Homeland Security officials said Tuesday they plan for as many as 18,000 arrivals daily, an astonishing number they warned are merely to prepare for all possible outcomes, not projections.
But there was no major change in how migrants are processed at the US-Mexico border and no increase in detention facilities for them. The backlog of the immigration court continues to rise to more than 1.7 million cases.
Although there is no overall rate for migrants, COVID-19 test results from several major crossings for illegal border crossings indicate that it is far below the levels that have raised concerns among U.S. officials.
In California, 54 out of 2,877 migrants tested positive in the first two weeks of March, according to the state Department of Social Services. This is a rate of 1.9%, down from a high of 28.2% on January 8th.
In Pima County, Arizona, which includes Tucson, the seven-day positive rate among migrants in early March did not exceed 1.3%. The positivity rate among 5,300 migrants tested last month at the Border Health Regional Center 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 was consistently lower than the general population.
Critics say Title 42 was an excuse to avoid asylum obligations under U.S. law and international conventions, buying Biden time to create the ‘human’ asylum system he promised during his 2020 campaign.
Justin Walker, a federal appeals court judge in Washington, wrote in an order this month limiting the policy that it is “far from clear that the CDC order serves any purpose” for public health. Walker, who was appointed by Trump, noted that the Biden administration did not provide detailed evidence to support the restrictions.
“The CDC’s order looks in some ways like a remnant of an era with no vaccines, rare tests, few therapeutic agents and little certainty,” Walker wrote for a three-judge panel.
CDC director, dr. Rochelle Walensky, noticed declining rates when she ended asylum restrictions for unaccompanied child migrants on March 11, while holding it for adults and families with children. In August, U.S. border authorities began testing children traveling alone in their busiest areas: Positive points dropped to 6% in the first week of March from a peak of nearly 20% in early February.