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Controversial border policy stays — for now; Utah Gov. Cox says repealing it would be a 'mistake'

Undocumented immigrants are detained by Border Patrol agents near McAllen, Texas, on June 22, 2021. Repealing Title 42, the controversial public health policy that allows Customs and Border Protection officers to turn away migrants trying to apply for asylum, is a “mistake,” Utah Gov. Spencer Cox said Thursday.

Undocumented immigrants are detained by Border Patrol agents near McAllen, Texas, on June 22, 2021. Repealing Title 42, the controversial public health policy that allows Customs and Border Protection officers to turn away migrants trying to apply for asylum, is a “mistake,” Utah Gov. Spencer Cox said Thursday. (Laura Seitz, Deseret News)



Estimated read time: 6-7 minutes

SALT LAKE CITY — Repealing Title 42, the controversial public health policy that allows Customs and Border Protection officers to turn away migrants seeking asylum, is a "mistake," Utah Gov. Spencer Cox said Thursday.

And on Friday, Judge Robert R. Summerhays, of the Western District of Louisiana, issued a temporary restraining order that will prevent the Biden administration from winding down Title 42, which was set to expire Monday.

The ruling comes after 24 Republican-led states, including Utah, sued the Biden administration over its decision to repeal the policy on May 23.

Cox is one of many politicians, mostly Republican, who were opposed to letting Title 42 expire. The list includes Utah Sens. Mitt Romney and Mike Lee.

Instead of repealing the policy, the governor says, the U.S. needs comprehensive immigration reform by way of increased border security.

"We should make illegal immigration more difficult. The drug trade and the fentanyl that we're seeing come across the border is very damaging, and there has to be more done there," Cox told reporters Thursday during his monthly PBS Utah news conference. "And secondly, that we fix legal immigration — that we make legal immigration easier."

Until then, Biden should not repeal Title 42, he said.

"With the rush that we're seeing at the border right now, we're not prepared for that. The United States is not prepared for that, so I think we need to keep that in place until we can fix these other problems," he said.

While news that Title 42 will stay is a blow to some Democrats, immigration advocates and the thousands of migrants waiting to apply for asylum, the ruling likely grants the Biden administration some time to prepare for a spike in border crossings. The Department of Homeland Security recently announced it is preparing for roughly 18,000 migrants a day without Title 42, compared to around 8,000 currently.

The U.S. Border Patrol has reported more than 1 million encounters with migrants along the southwest border in 2022, on pace to exceed last year's record-high of 1.7 million. The agency estimates an additional 60,000 cross the border undetected each month.


We should make illegal immigration more difficult. The drug trade and the fentanyl that we're seeing come across the border is very damaging, and there has to be more done there.

–Gov. Spencer Cox


The National Immigration Forum says Title 42 has been used to expel migrants 1.8 million times, noting some make repeated attempts to request asylum.

Dating back to the Public Health Service Act of 1944, Title 42 was invoked for the first time under the Trump administration during the COVID-19 pandemic and allows officers to turn away people and property "in the interest of public health."

Is Title 42 about public health — or politics?

While proponents of the order say it's important in combating both COVID-19 and illegal immigration, many advocates say it's been used as a political tool to stop legal migration.

"Title 42 has never been about public health; it's been an excuse to shut down the asylum system to stop humanitarian protection in this country for people fleeing persecution," said Valentina De Fex, staff attorney at the ACLU of Utah, in an email.

De Fex says the ACLU is "disappointed by Gov. Cox's continued support of Title 42."

"The adoption and continuation of this policy are wholly unsupported by science and run counter to U.S. laws and humanitarian obligations under various treaties," she said.

Republicans have repeatedly raised concerns over the policy's expiration, warning that it will fuel the current problems along the U.S.-Mexico border. In addition to the lawsuits, a bill introduced by New Mexico Republican Rep. Yvette Herrell, backed by 94 GOP House members, would codify Title 42 into law.

During a recent committee hearing, Romney blasted the Biden administration's decision, telling Homeland Security Secretary Alejandro Mayorkas the White House's southern border policy was "an extraordinary failure."

On repealing Title 42, Romney said, "You do that and guess what? This is going to come back to the way it was."

Utah freshman Rep. Blake Moore is three weeks off a trip to the U.S.-Mexico border, where he and other Republicans spoke out against repealing Title 42 and Biden's immigration policy in general.

"Don't let politics guide you. Address the policy. Enforce the 'Remain in Mexico' policy. It is a compassionate program, it will keep border activity to a minimum," Moore told reporters, noting that illegal immigration often comes up in his town halls.

Lee has also been skeptical of repealing the policy, joining Sens. Cynthia Lummis, R-Wyo., and Ted Cruz, R-Texas, in introducing the PAUSE Act, which would prevent Mayorkas from lifting Title 42 until "the travelers' health risk level for introducing, transmitting and spreading COVID–19 in or from Canada and Mexico" is at the Centers for Disease Contro and Prevention's lowest rating.

"It is nothing short of astounding that the administration is now removing the one tool holding back an unprecedented surge of illegal immigrants," Lee told Breitbart. "The PAUSE Act will ensure the last line of defense on our southern border is not abandoned by an administration that has no interest in upholding our immigration laws."

Still, experts say Title 42 actually dissuades legal immigration. Migrants seeking asylum that are turned away don't simply return to their home country, Matthew Soerens at World Relief said. Often they try their luck at the port of entry again, sit in limbo in Mexico, or attempt to cross the border illegally.

"With Title 42, you have no option to cross, and if you do try between ports of entry, you won't be able to request asylum, you'll just be turned away," said Soerens, the U.S. director of church mobilization and advocacy for World Relief's refugee resettlement agency. "It's possible we'll see an increase in people seeking asylum when Title 42 goes away, because people have been sitting in Mexico waiting for literally two years."

That uptick that could come with Title 42's expiration, Soerens said, "will be consistent with every May and June of almost every year."

"Seasonally that always happens," he said. "But also there's a pent-up effect. You have all these people who have tried in the last year to come and find safety and were turned away, and now they hear, 'Oh, the U.S. is open for asylum again.'"

Why can't we fix immigration?

Cox said the simple equation of making illegal immigration harder and legal immigration easier has bipartisan support.

"It's crazy to me that this is one of the areas where there is support among both Republicans and Democrats, and politicians don't want to solve this because they get elected running on these issues unfortunately," he said.

Cox talked to reporters Thursday, a few weeks after he led a trade mission to Mexico where he said he met with officials to talk about bolstering relations between the U.S. and its neighbor to the south.

"We think there is a path forward working together," he said. "Increasing their economic opportunities, bringing jobs from China to Mexico, expanding our opportunities for our business here in Utah to expand into Mexico, which will help the job market there and significantly reduce the problems at the border."

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Kyle Dunphey
Kyle Dunphey is a reporter on the Utah InDepth team, covering a mix of topics including politics, the environment and breaking news. A Vermont native, he studied communications at the University of Utah and graduated in 2020. Whether on his skis or his bike, you can find Kyle year-round exploring Utah’s mountains.

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