A controversial public health order that allows for expulsions of migrants at the border will stay in place at least through February, extending uncertainty as El Paso and other border communities deal with a growing humanitarian crisis, the U.S. Supreme Court ruled Tuesday.

In an unsigned order, the high court issued a stay of a Nov. 15 federal court order that had ordered an end to Title 42 on Dec. 21. Title 42 is a public health law invoked by the Trump administration in 2020, and expanded by the Biden administration, to allow U.S. Border Patrol agents during the pandemic to immediately expel migrants at the border, without giving them an opportunity to apply for asylum.

The policy has been kept in place even as the pandemic waned, becoming a de facto policy for limiting asylum opportunities at the border.

El Paso city officials had been preparing for a large increase in migrant crossings if Title 42 was lifted. The number of migrants released by the Border Patrol in El Paso has dropped in recent days to 500-600, but even with Tuesday’s Supreme Court decision, El Paso officials expect the numbers to rise to the 1,700 or more releases seen earlier this month.

“Those numbers will get back to what we saw maybe about 10 days ago. We’re predicting it’s going to hold at that,” Deputy City Manager Mario D’Agostino said at a news conference after the Supreme Court ruling.

Even with Title 42 in place, tens of thousands of migrants have crossed the border into El Paso since late August. Many of them were not eligible for expulsion because their home countries and Mexico would not accept them, so they have been released in El Paso to continue their journey to other U.S. communities.

More than 10,000 migrants were released in El Paso after surrendering to Border Patrol agents the week of Dec. 11-17, a number that dropped to about 5,900 last week. Hundreds or perhaps thousands more evaded Border Patrol agents and entered El Paso through gaps in fences and other means.

El Paso’s shelter network was overwhelmed, creating a situation where hundreds of people risked sleeping in the streets as they awaited transportation out of the city. 

In response, the city government opened a shelter at the convention center and two closed schools. That provided respite for migrants from Nicaragua, Cuba and other countries who were processed by the Border Patrol and released.

However, hundreds of Venezuelans were prohibited from going to city-run shelters because they entered the United States without Border Patrol inspection, and the city government could not get reimbursed for services provided to them.

The Catholic Diocese and Annunciation House opened new shelters at Catholic parishes to care for the Venezuelan migrants, but hundreds continued to sleep on Downtown sidewalks and alleys because they feared deportation.

The Venezuelans were initially exempt from Title 42 expulsion because their home country refused to allow their return and Mexico would not accept them. But after tens of thousands of Venezuelans crossed into the United States in the late summer and early fall, the Biden administration struck a deal with Mexico to allow the expulsion of Venezuelans back across the border.

One family’s story

Three months ago, Daniela, her 4-year-old daughter and the girl’s father left Caracas, the capital of Venezuela, for the United States.

When they finally reached Juárez in late November, they were told that Venezuelans were no longer allowed into the United States because of Title 42. They were also told that they had to wait until Dec. 21, when it would be lifted. 

When word got out that Title 42 was left in place last week, Daniela and her family crossed into El Paso without being processed by Border Patrol.

“We waited for the 21st, but once nothing changed, we crossed by hiding and running at night,” she told El Paso Matters last week. “We were not going to wait for the 27th (when a Supreme Court ruling was expected.)

“Nothing is for sure. We are better off here than in a Juarez shelter.”

Daniela’s goal is to somehow reach Denver and avoid immigration officials until Venezuelans are free to enter the U.S.

“We crossed seven countries to get here, we are not giving up,” she said while sitting with others outside the Greyhound bus station in Downtown El Paso. “We will never give up because there is no future back home.”

Hundreds of migrants, most from Venezuela, were gathered Tuesday outside Sacred Heart Catholic Church in South El Paso. Without travel authorization from the Border Patrol, they face challenges getting out of El Paso.

El Paso city officials said they’re unsure whether a larger number of frustrated migrants who’ve been awaiting the end of Title 42 in Juarez or elsewhere may try to evade Border Patrol to enter El Paso. 

Many of those people have refused offers of shelter because they are fearful of deportation or expulsion, D’Agostino said.
“Seeing people in the streets not wanting to go into shelter, it’s not ideal. No one wants that for their community, no one wants that for the people that are out in the streets,” he said.

What comes next

Texas and 18 other states sued to block the Nov. 15 court ruling ending Title 42, saying it would cause a huge increase in unauthorized immigration.

In its order Tuesday, the Supreme Court said arguments in the case would be set for sometime in February. The court usually takes several weeks to issue a ruling after oral arguments.

The court said it’s not considering the validity of the Nov. 15 court ruling by a federal judge in Washington, D.C., that using Title 42 to expel migrants was unlawful. The high court’s sole focus at this point is whether the 19 states have the authority to challenge that ruling.

Four justices opposed the effort to stay the lower court ruling. They included the three justices appointed by Democratic presidents – Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson – as well as Neil Gorsuch, a Trump appointee.

In a dissent, Gorsuch said the public health justification for Title 42 no longer exists. He also acknowledged the expected surge in migration when Title 42 ends.

“But the current border crisis is not a COVID crisis. And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort,” he wrote in a dissent joined by Jackson.