The Supreme Court’s latest move allows a short-term reprieve to an anticipated increase in asylum seekers trying to cross from Mexico into California and other states, but recent confusion at the border is a preview of what may soon come should a pandemic-era measure known as Title 42 be lifted in 2023.
The situation, and its use as a political backdrop, has prompted local officials to ask what state resources will be available next year with California facing a potential budget shortfall and the possibility that Title 42 will end.
Title 42 is a Trump-era immigration policy that has continued under President Joe Biden. It allows border agents to rapidly expel migrants at official ports of entry during public health emergencies. The policy has resulted in the expulsion of tens of thousands of people seeking asylum and has discouraged many others from crossing the border.
The policy states that if the U.S. surgeon general determines there is a communicable disease in another country, health officials have the authority, with the approval of the president, to prohibit “the introduction of persons and property from such countries or places” for as long as health officials determine that action is necessary.
The measure had been set to lift last week by order of a federal court, which would have allowed many asylum-seekers waiting in limbo at the border to go ahead and cross into the United States. Some experts say that because smugglers in Mexico use any shift in U.S. immigration policy to exploit migrants, mere conversation about the possibility of lifting Title 42 triggered even more people to try to cross into the U.S. in recent weeks.
The Supreme Court’s brief order Tuesday stayed — meaning delayed — the trial judge’s ruling that would have lifted Title 42 until the high court hears arguments in the case in February. The political and legal ping-pong in the case is hard enough for U.S. audiences to follow, making it nearly impossible to explain south of the border.
The Supreme Court’s order is a response to a request filed by 19 Republican-led states that they be heard in the case. It does not overrule the lower court’s decision that Title 42 is illegal; it merely leaves the measure in place while the legal challenges play out in court.
The federal court order that was supposed to lift Title 42 came as a result of a lawsuit brought by the American Civil Liberties Union on behalf of asylum-seeking families. Asylum is a protection codified in international law for foreign nationals who meet the legal definition of “refugee.” The United Nations 1951 Convention and 1967 Protocol define refugees as people unable or unwilling to return to their home country, and who cannot obtain protection in that country, due to past persecution or a well-founded fear of being persecuted in the future “on account of race, religion, nationality, membership in a particular social group, or political opinion.” Congress incorporated this definition into U.S. immigration law in the Refugee Act of 1980.
For those stuck in Mexico because of Title 42, waiting can be perilous. Human Rights First has documented more than 13,000 attacks on asylum seekers waiting in Mexico during the Biden administration.
Because it takes time for news of shifts in U.S. immigration policy to reach areas in rural Mexico and Central America, the numbers of migrants arriving in Tijuana and San Diego this week in anticipation of the end of Title 42 could be elevated right now — and it may take some time before those numbers drop-off as news travels, experts said. Migration numbers typically increase through the first half of the year before dropping off in the summer.
San Diego County Supervisor Joel Anderson, a former Republican state senator, was among a group of political leaders who recently complained that the state and federal governments have not provided the funds local leaders have requested to handle the expected influx of asylum seekers and other migrants.
“We’re not even talking about whether these are good policies or not,” he said. “But whatever the policy is, we become the targets of it. We’re willing to step up, but they have to step up, too, by giving us the resources we need to deal with it.”
He joined several local Republican and Democratic leaders in San Diego in urging in letters and news conferences that the state and the feds should provide more support ahead of the expected end of Title 42.
Local officials pointed to needing more funding for schools, hospitals, and police services, among other resources, if Title 42 eventually lifts. The near constant legal back-and-forth has also provided a convenient conversation starter for politicians wanting to debate larger immigration policy issues.
“With the state budget projecting a $25 billion deficit, I’d like to know what the plan is for our schools and to help lift all of our students,” said Andrew Hayes, board president of the Lakeside school district in rural eastern San Diego. Hayes said increases in immigration causes strains to the local educational systems because students fleeing persecution in other countries often have increased mental health needs and sometimes require special instruction.
San Diego County Supervisors Nathan Fletcher and Supervisor Nora Vargas, both Democrats, wrote to Alejandro Mayorkas, the U.S. homeland security secretary, on Dec. 19, also requesting federal resources and “a comprehensive plan to ensure humane entry into the United States for those seeking asylum into our country.”
“When Title 42 is lifted, we will need additional resources and personnel on the ground to process and arrange for the onward travel of asylum seekers to their final destination,” they wrote. ”We will also need the federal government to set up temporary shelters on federal property to ensure access to needed social and health services. Our hospitals, our public health department, our social services, and our homeless service providers are already at maximum capacity serving vulnerable residents in San Diego.”
El Cajon, not “the governor’s neighborhood”
Title 42 policy’s end “will likely increase” migration flows, the Department of Homeland Security officially said last week.
The burden will unfairly fall on a few border cities, Anderson said.
“They’re not talking about releasing people into Sacramento or putting people in the governor’s neighborhood,” said Anderson. “No, they’re talking about releasing people right here in El Cajon, where the median household income is just over $58,000 per year.”
Gov. Gavin Newsom’s office responded that the state has done what it can to support local jurisdictions.
“While the federal government is responsible for immigration, California has invested more than any other state to ensure the safety and dignity of asylum seekers. Roughly $1 billion has been invested to provide critical services to migrants, including medical screenings, vaccinations, temporary shelter, food, clothes, and other aid. However, with looming budget deficits, the state cannot continue to fund these efforts at scale without significant support from Congress,” said Daniel Lopez, the deputy communications director for Newsom.
“The state has advocated for additional resources to help communities like San Diego provide services to recently arrived migrants,” Lopez added.
Anderson wrote to Gov. Gavin Newsom Dec 14 complaining that a plan that San Diego County officials proposed to the state was rejected. Though he declined to discuss the plan’s specifics, he said it included opening a temporary emergency shelter, providing food, clothing, healthcare and wrap-around services.
“It is irresponsible to ask the City of El Cajon to shoulder the burden and costs necessary to address the needs of these individuals without assistance from the State and federal government,” wrote Anderson in the letter.
For his part, Newsom has been complaining of a lack of federal support for asylum seekers and immigrants.
Newsom said earlier this month that, because of the federal government’s lackluster support, the state has had to spend nearly $1 billion in the last three years, working with nonprofits to provide immigrants released from federal detention with health screenings, temporary shelter and help connecting with sponsors. The immigrants had been held at nine facilities in Imperial, San Diego and Riverside counties.
“With the respect to the federal government, we’ve been doing their job for the last few years at scale,” Newsom said. “But we cannot continue to absorb that responsibility.”
The state Legislative Analyst’s Office recently said in its annual forecast that Newsom and the Democratic Party-controlled Legislature are facing a $24 billion projected budget deficit for the next fiscal year.
If the state enters a recession the outlook is even worse, with revenues predicted to fall short by $30 billion to $50 billion. The governor signed a record-breaking $308 billion budget in June.
Advocates say that while migrants sometimes require services when they first enter the country, research shows they ultimately contribute to the larger economy. In California undocumented immigrants collectively pay $3.1 billion a year in state and local taxes, according to the Institute on Taxation and Economic Policy.
Meanwhile, some migrants in Mexico last week expressed disappointment, concern and confusion about the delay in lifting Title 42.
Several people said they had left shelters with the expectation that the order would be released last week and now they had no place to go.
However, the scene outside El Chaparral, a pedestrian border crossing between San Ysidro and Tijuana that has been closed since the pandemic began, looked far different than images coming out of Texas. There, members of the National Guard, armed with rifles, have put up razor wire and are blocking migrants from entering the United States.
Waiting patiently, but getting desperate
Here in Baja California, just south of San Diego, migrants wearing masks stood patiently in lines last week waiting for services or to receive news about any policy changes that may impact their ability to cross the border. The flow of people in the area was orderly, mirroring any other normal mid-week day during the lunch hour.
A migrant from Michoacán said being out on the streets in Tijuana was extremely uncomfortable for his wife, who has been diagnosed with a brain tumor. He asked not to be named because people in Tijuana were looking for him, putting him in danger.
“We haven’t been able to receive any help from anywhere,” he said. “We’re getting desperate.”
Anderson said that the county was willing to welcome asylum seekers “with open arms,” but it needs more funds to do it.
“Even if it’s only 10 more people coming in, that’s 10 people too many without additional funding because we already have so many people living on our streets needing services,” he said.
Newsom toured a state-funded migrant center that provides services to asylum seekers near the Imperial County border with Mexico on Dec. 12. There the governor criticized Republicans in Congress for politicizing immigration while failing to support comprehensive reforms.
The Department of Homeland Security said it plans to boost resources at the border, “increasing processing efficiency, imposing consequences for unlawful entry, bolstering nonprofit capacity, targeting smugglers and working with international partners,” a DHS spokesperson said Thursday.
If Title 42 is ultimately lifted, the process for processing migrants at the border would return to the way it was before the start of the pandemic.
Asylum seekers who don’t have prior permission to be in the country would have to pass what’s called a “credible fear” test. They would have to prove to a processing agent or asylum officer that they have a well-founded fear that if they are deported home, they would face persecution.
After that test, migrants would either be removed from the country, detained in immigration custody or released into the U.S. to wait while their asylum cases make their way through immigration court — a process that can take years.
Photojournalist Carlos Moreno contributed to this report.
CalMatters is a nonprofit, nonpartisan media venture explaining California policies and politics.
