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West Virginia joins coalition challenging Title 42 decision

CHARLESTON, W.Va. — West Virginia is part of a multi-state legal challenge seeking to halt the Biden administration’s plans to end a public health order limiting entries into the United States.

Twenty-one state attorneys general — including West Virginia’s Patrick Morrisey — filed a motion Thursday to block federal officials from ending the Title 42 authority, to which the U.S. Department of Homeland Security responded the next day.

The Centers for Disease Control and Prevention previously announced the termination of the policy will be finalized on May 23. The Trump administration issued the public health order in March 2020 to mitigate the spread of the coronavirus. Officials have directed expulsion efforts toward people entering the country from the U.S.-Mexico border.

Immigration officials have cited more than 1.8 million encounters related to the public health order since March 2020.

Attorneys general for Arizona, Louisiana and Missouri filed a lawsuit in U.S. District Court for Louisiana’s western district on April 3. Eighteen other states have since joined the effort.

Officials argued the Department of Homeland Security is already processing migrants through immigration law rather than the public health order, which hinders efforts to prevent people from entering the country illegally.

“Indeed, it appears that CDC’s forecast of operational problems was correct, and agents are being pulled from the field as a consequence of DHS’s actions,” the states argue. “This increases the number of aliens who arrive into the Plaintiff States undetected and thus not processed under either Title 8 or Title 42, or screened for any communicable disease.”

Blas Nuñez-Neto, the Department of Homeland Security’s acting assistant secretary for border and immigration policy, acknowledged in a response filed Friday that DHS is curtailing the public health order’s utilization.

“The use of expedited removal for select migrants encountered at the southwest land border is not novel,” he said. “It has been a tool employed throughout the course of the pandemic for as long as the CDC’s Title 42 Orders have been in place.”

Nuñez-Neto noted individuals processed under the public health order do not face immigration or criminal consequences.

“Those previously processed pursuant to Title 42 can keep trying to enter, and be expelled, multiple times, with no consequence for this behavior other than repeat expulsion,” he added. “And, an unknown—but likely significant—proportion of these individuals evade detection during their repeat attempts and succeed in entering the United States illegally.”

People can also only be processed under Title 42 if Mexico and other countries agree to accept these individuals, but many countries have refused or restricted re-entry.

According to Nuñez-Neto, federal officials have processed 14% of single adults from El Salvador, Guatemala and Honduras for expedited removal over a seven-day period Thursday. He argued the agency’s divisions are preparing to operate under immigration laws by May 23.

“The use of expedited removal for select migrants encountered at the southwest land border is not novel,” Nuñez-Neto said. “It has been a tool employed throughout the course of the pandemic for as long as the CDC’s Title 42 Orders have been in place.”

The coalition of states submitted a temporary restraining order requiring the Department of Homeland Security to process migrants under Title 42. District Judge Robert Summerhays, an appointee of former President Donald Trump, has two weeks from Thursday to rule on the proposal.

Migrant encounters at the southern border are approaching a 20-year record; U.S. Customs and Border Protection reported agents stopped migrants from entering the country 221,303 times in March, a 33.4% increase from the prior month. A majority of the migrants are single adults.

West Virginia’s federal lawmakers have criticized the Biden administration’s decision regarding the policy. Sens. Joe Manchin, D-W.Va., and Shelley Moore Capito, R-W.Va., are sponsoring the Public Health and Border Security Act; the legislation would delay ending Title 42 until 60 days after the surgeon general informs Congress about ending the pandemic and national security declarations. The Biden administration also must submit a plan regarding how to address a possible influx of migrants.

“We know that the drugs are pouring over the border, and if you have to disrupt 18,000 people a day as a border agent, you’re not disrupting as efficiently and as deeply the drug trafficking that goes on,” Capito told reporters earlier this month. “The top priority is going to be interdicting people.”

Members of the House of Representatives have introduced a similar bill.

Texas Attorney General Ken Paxton filed a lawsuit Friday challenging the decision on the public health order. Paxton filed the complaint in a federal court in Texas’ southern district.

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