Arizona elected officials shaping border health debate, with future of policy uncertain

By Rafael Carranz | Arizona Republic

The future of Title 42, an emergency public health rule that limits access to asylum at the U.S.-Mexico border, has become increasingly uncertain as elected officials in the U.S. seek to delay the repeal of the controversial policy or block it through the courts.

President Joe Biden’s administration is set to do away with Title 42 on May 23, one of the last remaining pandemic restrictions still in effect. The policy has been used to turn away more than 1.7 million migrants since March 2020.

But in a hyper-polarized political climate and midterm elections looming, Title 42’s implications on immigration and border enforcement have become the focus of a political debate even though its stated aim is to prevent the spread of COVID-19.

Elected officials in Arizona, one of the states that is most affected by the policy’s consequences, are leading the conversation on whether to repeal, delay or keep Title 42 in place.

The prospect of repealing the public health rule by May 23 appears increasingly unlikely. A federal judge in Louisiana temporarily blocked the Department of Homeland Security from taking steps to wind down the implementation of Title 42. 

U.S. District Judge Robert Summerhays from the Western District of Louisiana held a hearing Friday to decide whether to block the repeal of Title 42. He said he would issue his decision some time before May 23, but he has kept in place the temporary injunction.

The hearing stems from a lawsuit filed April 4 by Arizona Attorney General Mark Brnovich, along with 20 other Republican attorneys general. Brnovich is also a GOP candidate for the U.S. Senate seat held by Sen. Mark Kelly, D-Ariz.

The lawsuit argues on procedural grounds that the decision by the federal government under Biden to end Title 42 was arbitrary and capricious because it sidestepped a notice and public comment process. 

“The Biden administration has little concern for maintaining public safety and even less for following administrative procedures,” Brnovich said in a written statement after the hearing. “Our coalition of state attorneys general will continue fighting to preserve Title 42 with the hope of maintaining some accountability and sanity at our southern border.”

Brnovich, who touts himself as a “national leader” on challenging Biden’s immigration and border policies, also filed a separate lawsuit March 28 with 13 other Republican attorneys general against a final interim rule published in March.

That rule would allow DHS asylum officers to adjudicate asylum claims at the border, a role that falls on immigration judges under the U.S. Department of Justice. The lawsuit claims that would allow officers to lower standards and fast-track more asylum cases.

Brnovich is in lockstep with other Republican leaders at the state level.

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