Biden Administration to Keep Using Public Health Rule to Turn Away Migrants

WASHINGTON — With the number of migrants crossing the southern border surging and the pandemic proving to be far from over, the Biden administration has decided to leave in place for now the public health rule that has allowed it to turn away hundreds of thousands of migrants, officials said.

The decision, confirmed by the Centers for Disease Control and Prevention on Monday, amounted to a shift by the administration, which had been working on plans to begin lifting the rule this summer, more than a year after it was imposed by the Trump administration. The C.D.C. said allowing noncitizens to come over the border from either Mexico or Canada “creates a serious danger” of further spread of the coronavirus.

President Biden has come under intense pressure for months from some Democrats and supporters of more liberal immigration policies to lift the rule, which critics say has been employed less to protect public health than as a politically defensible way to limit immigration.

The recent spread of the highly transmissible Delta variant has bolstered the argument that the public health rule, known as Title 42, remains necessary to contain the coronavirus. And the virus’s quickening spread comes as border officials are so overwhelmed with the persistent pace of illegal migration that they say that allowing more migrants into the country by lifting the rule poses the threat of a humanitarian crisis.

On Monday, the American Civil Liberties Union said it would move forward with a lawsuit seeking to force the administration to lift the public health order for migrant families after months of negotiations with the “ultimate goal” of ending the policy, one of the group’s lawyers said.

“It is now clear that there is no immediate plan to do that,” Lee Gelernt of the A.C.L.U., the lead lawyer on the case, said in a statement on Monday. “The administration made repeated public statements that it just needed some time to build back the asylum system the Trump administration depleted. We gave them seven months. Time is up.”

While the administration has used the rule to rapidly turn around single adults and many migrant families, it has not applied the restriction to migrant children arriving alone at the southern border, in a departure from the Trump administration.

In a court filing on Monday responding to the A.C.L.U.’s suit, the administration said that blocking enforcement of the rule now would lead to the immigration system being further overwhelmed by asylum-seekers and to even more overcrowded and unsafe conditions in border facilities. Overcrowding at southern border stations makes it difficult to impose public health precautions like social distancing, the filing said, noting that more migrants have been testing positive for the coronavirus. More border officers are testing positive, as well.

Keeping the public health order in place, David Shahoulian, the assistant secretary for border and immigration policy at the Department of Homeland Security, said in the filing, is “critical” given the current conditions.

Mr. Biden campaigned on returning compassion to the country’s immigration system and undoing the policies of former President Donald J. Trump that significantly limited the number of asylum-seekers the country would consider. That goal has proved difficult to achieve, leaving the White House under fire from the left for not moving aggressively enough to undo Mr. Trump’s legacy even as Republicans accuse Mr. Biden of creating a crisis on the border by suggesting that he will make it easier for many people to get a shot at entering the U.S.

Mr. Biden has laid out a proposal for immigration law changes that includes a path to citizenship for some migrants already in the United States. But there is little hope of passing sweeping changes to the laws through bipartisan negotiation, so Democrats instead hope to use a budget-related legislative process to bypass Republican opposition.

Over the weekend, the administration stepped up enforcement at the southern border, sending more officers to help border officials with the lengthy processing necessary to bring migrants into the country and start making a case that they need asylum, the administration said in its court filing.

To help relieve the backup, immigration officers are bringing more families to family detention centers, using the facilities as temporary shelters. The agency entered into a new contract to add more than 1,200 beds to its family housing capacity.

The number of migrants crossing the southern border between the United States and Mexico exceeded the traditional seasonal spring surge in migration earlier this year, and the pace did not slow with the arrival of the oppressive heat of the summer months. The number of times border officials caught migrants crossing illegally in June was the highest monthly figure since April 2000. And the administration said preliminary figures for July indicate another new high.

Just a few weeks ago, the administration was considering a plan to lift the public health rule for migrant families as early as the end of July and later for single adults, who make up the bulk of the migrants who have been turned away since the beginning of the pandemic. Delaying those plans, possibly through the end of the year, is sure to be welcomed by Republicans who have proposed legislation to maintain the rule for as long as necessary. But doing so also fuels Republican arguments that the southern border is in a state of crisis.

Despite the public health rule, many migrant families have been allowed to enter the United States this year. The administration has been able to enforce the rule in some areas of the border but not others, such as South Texas, in part because of a lack of shelter capacity in Mexico. And some migrant families have also been allowed to enter the country because of special exemptions, including migrants identified as vulnerable by advocacy groups and international organizations.

But the varying degrees of enforcement of the public health rule have sown confusion among migrants and driven many to make repeated efforts at getting into the United States, despite pleas from the Biden White House not to. More than a third of the crossings tracked by Customs and Border Protection in June were attempted by a repeat crosser.

While the Border Patrol typically processes migrants who cross the border illegally, the sheer number of people who have been crossing into Texas in the Rio Grande Valley — many of whom are Central American families fleeing violence and poverty — has led the administration to send officers from Immigration and Customs Enforcement to assist with those duties and expand testing for the coronavirus. Two of the enforcement agency’s family detention centers are being used as expanded temporary shelters where families can stay until their processing is complete, an administration official said.

Democrats were highly critical of Mr. Trump’s handling of a similar surge in 2019 when he proposed a regulation to indefinitely detain migrant families caught crossing the border illegally. The rule would have replaced a decades-old court agreement that requires a certain level of care for migrant children and a 20-day limit for how long they can be held in custody.

In March, the Biden administration announced plans to hold migrant families for only 72 hours, a stark departure from the policies of both the Obama and Trump administrations.

Neither the Department of Homeland Security or Immigrations and Customs Enforcement responded to questions about the length of time the government planned to hold families in the detention centers-turned-temporary processing hubs so migrants are not waiting for days outside.

“We will be monitoring whether short-term processing and testing of families turns into longer-term detention,” Mr. Gelernt of the A.C.L.U. said.

Miriam Jordan contributed reporting from Los Angeles.