This Arizona sheriff says he wants to see Title 42 end

By Alisa Reznick
Published: Tuesday, December 13, 2022 - 11:59am
Updated: Tuesday, December 13, 2022 - 12:15pm

Title 42, the pandemic-era restriction on asylum at the border, is supposed to sunset next week. The controversial protocol began under the Trump administration but has been used and expanded under President Joe Biden.

In November, U.S. District Court Judge Emmett Sullivan found its use "arbitrary and capricious," and ordered the government to stop using it by Dec. 21.

Federal lawyers announced plans to appeal that order this month. In court filings, they argue Title 42 was legally enacted by the Centers for Disease Control and Prevention. They also say it's undergoing changes through a comment period and rule-making process. 

The Biden administration tried to end the protocol itself earlier this year, but an appeals court in Louisiana sided with GOP-led states, including Arizona, which had sued to keep it in place. Many of those states have also moved to join the Washington, D.C. case, and argue removing the protocol will cause the number of people at the border to spike.

But Santa Cruz County Sheriff David Hathaway says the protocol itself is causing the backup. 

"Title 42 has exacerbated things, because it prevents any processing from happening," he said. 

A sign near the Nogales Arizona Port of Entry
Jerry Glaser/U.S. Customs and Border Protection
A sign near the Nogales Arizona Port of Entry.

Under the protocol, migrants apprehended by Border Patrol agents trying to cross the border are swiftly turned back to Mexico. Ports of entry like the one in Nogales, in Hathaway’s county, are closed almost entirely to asylum claims. For Nogales, Hathaway says Title 42 is the latest policy breaking up a cross-border community. He says Customs and Border Protection and other facets of the federal government have the resources to reopen the border and return to normal processing.

"It's something that never should have been there in the first place. There's always talk about caravans and invasion ... it's a bunch of talk," he said. "The 800-pound gorilla in the room is the federal agencies, CBP and the thousands of federal officers that are in my county. It is a federal issue and there’s not going to be any change in our lives. There’s not going to be some invasion." 

Nogales has one of the largest Border Patrol stations in the country. Hathaway says CBP has been increasing its processing capacity in recent weeks, in anticipation of Dec. 21. In a court filing late Monday, GOP states including Arizona asked a federal appeals court to rule on their request to put Title 42's planned end on hold. The request was denied by Sullivan earlier this month. A response from the court is expected later this week.