On April 26, 2022, Alejandro Mayorkas, Secretary of the Department of Homeland Security (DHS), issued a memorandum on the Biden administration’s plan to manage increased encounters of noncitizens at the U.S. border with Mexico. The increase is expected once Title 42 of the U.S. Code is lifted, effective May 23, 2022. However, a federal court in Louisiana issued a temporary restraining order on April 27, 2022, to block early implementation of termination of Title 42. The Biden administration, which the court noted had acknowledged some changes in policy in preparation for Title 42 termination, said it would comply with the order. A court hearing is scheduled for May 13, 2022, to consider plaintiff states’ request for a preliminary injunction against terminating Title 42. Plaintiff states argue that the Title 42 termination order was not issued in compliance with the Administrative Procedure Act.
Title 42 of the U.S. Code is a public health law that relates to the expulsion of noncitizens due to public health concerns, in this case the prevention of the spread of COVID-19. Under a Centers for Disease Control and Prevention order, the Mayorkas memo notes, a “significant percentage of all noncitizens encountered” at the southwest border are currently expelled. The Mayorkas memo says that once the order is lifted, all noncitizens will be processed under Title 8. Under Title 8, noncitizens without a viable asylum claim or unable to establish a legal basis to remain in the United States are removed to their home countries.
The 20-page Mayorkas memo includes details on the “whole-of-government plan” to prepare for and manage the anticipated increase in noncitizens at the southwest border, as well as background on the current situation.