A week after Title 42 expired, the number of migrants in Border Patrol custody remains high as fewer migrants than expected are being released into the community – a scenario that could change with pending court actions.

On Thursday, more than 4,000 people were in Border Patrol custody in the El Paso sector, down from the more than 6,000 in custody on May 12, according to the city’s migrant dashboard. The weekly average, however, has topped the 5,000 mark that was seen in late December at the height of the last influx. The average reached 5,554 last week; and stood at 5,254 as of Thursday.

About 500 migrants have been released to community shelters daily the past few days – far fewer than the expected 2,000 daily releases.

That’s in part because a federal district judge in Florida temporarily blocked the Biden administration from implementing a policy that would allow for the expedited releases of some migrants without giving them court notices. The policy was meant to avoid or reduce overcrowding at Border Patrol detention facilities. 

The “parole with conditions” policy allows border enforcement agents to release migrants who are found not to be a risk to public safety or national security without giving them an order to appear in court. Instead, the migrants are instructed to check in at Immigration and Customs Enforcement offices anywhere in the country to obtain a court notice.

A hearing in the case is set for Friday, when the judge will consider Florida’s request for a preliminary injunction of the policy.

U.S. Customs and Border Protection officials on Thursday didn’t immediately respond to a request for comment on the number of migrants in custody. But in a statement last week, the agency said the ruling was “harmful” because it could result in unsafe overcrowding at its facilities but would comply with the court order.

In other court action, several human rights organizations, including the American Civil Liberties Union, filed a legal challenge to a new immigration rule put in place by the Biden administration on May 11. The groups call the new rule an asylum ban because it largely denies asylum to those who don’t first apply online or request protection in other countries.

The filing argues that asylum laws “do not allow the administration to restrict access to asylum based on an individual’s manner of entry or whether they applied for asylum elsewhere.”

“The ban largely mimics two Trump-era policies — known as the “entry” and “transit” bans — which were blocked by the courts,” states a May 11 press release from the groups.

CBP on Twitter has been warning migrants – in English and Spanish – about the dangers of human smuggling and about the current immigration policies.

“According to U.S. immigration laws, the fact is that most noncitizens coming to our border are not eligible to remain in the United States. Asylum laws do not provide for relief solely for economic reasons or for general violence,” the agency posted on Twitter on May 17.

‘Preparing for the worst’

The leaders of some nongovernmental organizations said they fear the quiet across the Borderland since Title 42 expired on May 11 may be the calm before the storm. 

That’s the waiting game border communities like El Paso have been playing since last year, when the CDC in April said the Title 42 health order was no longer necessary to stop the spread of COVID-19. 

The health policy, implemented by the Trump administration at the start of the pandemic, was to be terminated on May 23, 2022. But a series of legal challenges kept it in place for months after; then a new end date of Dec. 21 was set before court rulings again extended its life. 

That was until last week, when the COVID public health emergency expired.

But the large number of migrants expected to be released to the community hasn’t materialized.

The emergency shelter the city government set up with the help of the American Red Cross at the vacant Bassett Middle School is now housing fewer than two dozen people. It has capacity to house up to 1,000 people, as would a second emergency shelter at vacant Morehead Middle School.

The shelters opened on May 10, and Bassett has housed between 18 to 68 people a day through Tuesday, according to the latest data available on the city’s dashboard. The Morehead shelter has not taken in any migrants.

The city has also provided temporary shelter to migrants in hotel rooms since last week, housing anywhere from 21 to 176 people on any given day.

City spokeswoman Laura Cruz Acosta said the city shelters are “intended to prevent street releases” by decompressing the Border Patrol’s Central Processing Centers and providing shelter space when others are at capacity.

“The shelters remain at the ready state, as this is a very fluid situation, and we are continuously monitoring the needs of our community and will respond accordingly,” she said in an email.

John Martin, director of the Opportunity Center for the Homeless, said he’s concerned the city will close the emergency shelters prematurely because of the low numbers they’ve seen so far.

“What happens when we see a large flow of migrants from releases?” Martin said. “I would hope that they put it on a warm status rather than shut it down cold. There’s too many unknowns.”

About 100 migrants were being housed inside the Opportunity Center on Wednesday, a stark difference from the upwards of 800 who had camped in the center’s alleyway and parking lot two weeks ago.

Martin said for now, the Opportunity Center is taking advantage of the down time “to prepare for the worst,” adding that the center has opened an indoor overflow area they hope they don’t have to use. 

Not far from the Opportunity Center, Blake Burrow is also working to shelter migrants in two buildings run by the Rescue Mission of El Paso, where he serves as chief executive director.

“We always have more need than space and resources,” he said, adding that the Rescue Mission shelters can accommodate up to 225 people. Since December, he’s rented one of the buildings from El Paso Water for $10,000 a month to house migrants – an expense that has mostly been covered by Federal Emergency Management Agency reimbursements, he said. That property sits adjacent to the Rescue Mission in South Central El Paso.

Barrow said he doesn’t believe the city should not be running a shelter “unless as a last resort” because it’s not the local government’s area of expertise.

But, he added, it needs to be available as a last resort when nongovernmental and faith-based organizations are out of options – and room.

“Between that and the streets, we welcome the space. But I don’t know that the city treats people like (city officials) would like to be treated. They’re not looking at this from the same standpoint we are,” he said. 

He didn’t expand on his comment except to say that shutting down the emergency shelter entirely makes it harder to stand it back up and hopes it’s not needed.

Helping transport migrants

On Monday, El Paso County Judge Ricardo Samaniego urged the city not to shut down the emergency shelters and other migrant services it had set up.

“We really want to make sure that we don’t demobilize too quickly until we really understand all the circumstances,” Samaniego said after a Commissioners Court executive session discussion on the county’s response to the migrant influx. The court took no action following the closed-door discussion, but Samaniego said he wanted to express his concern.

“I know the numbers went down, but that doesn’t mean we clearly have the intel to 

to understand what’s going to happen,” he said. “As far as the county, we’re going to try to keep all we offer and scale down if we need to.”

The county’s Migrant Services Support Center, which helps connect migrants who have the means to pay for their own travel with flights and bus trips to their next city, processed 2,490 asylum seekers from May 7-14, county leaders said. The week prior to that, the county center processed 2,867 migrants. 

Since opening in October, the center has processed more than 36,000 people. 

The county’s migrant center – along with the migrant services provided by the city, the Rescue Mission and the Opportunity Center –  are being funded by the FEMA under the Emergency Food and Shelter Program.

Outside Sacred Heart Catholic Church, where more than 1,500 migrants had congregated the past week, only a few people remained on Thursday. Most were Venezuelans who had been processed by Border Patrol, proudly displaying their documents allowing them to remain in the country at least temporarily.

“This is a big step,” said a Venezuelan man who came to the U.S. with his pregnant wife in late March. The couple, who hope to open a restaurant in the country someday, said they are saving money to travel to Denver. They said they’ve stayed at a few El Paso shelters and on the streets when the shelters have been full. 

“We’ve been through worse to get here; we sleep where we can,” said the man, who didn’t want to give his name. “We have to make it.”