SAN ANTONIO — There’s a lot of mention of “Title 42” lately. With it comes images of crowds of people crossing or on the banks of the Rio Grande, which divides the U.S. and Mexico. As it is expected to end Thursday, it might be a good time to understand what it's all about.
What is Title 42?
Title 42 is a part of U.S. law that deals with public health, social welfare and civil rights. It gives the federal government the authority to take emergency action to keep communicable diseases out of the country. Before President Donald Trump used it in 2020, it had been used only in 1929 to keep ships from China and the Philippines from entering U.S. ports during a meningitis outbreak.
Trump invoked the law when the coronavirus pandemic broke out, ostensibly to prevent the spread of Covid, but its implementation allowed the Trump administration to expel migrants more quickly without having to consider them for asylum, and it has continued under the Biden administration.
Why is there talk about 'lifting' Title 42?
The Biden administration had repeatedly sought to end the policy, but its plans were delayed by legal challenges from Republican states' attorney generals. The pandemic waned, making the public health order that led to using Title 42 moot, and the U.S. Supreme Court canceled arguments in the case. Another administration effort to unwind the policy had been blocked by a federal judge in Louisiana.
Why has the use of Title 42 been controversial?
Immigration and humanitarian groups accused the Trump administration of using the pandemic as a pretext to deny tens of thousands of people migrating to the U.S. the chance for humanitarian relief through asylum. They've also criticized the Biden administration for continuing to use it. The groups have said the measure stokes racism and allows for discrimination because some countries, such as Venezuela, had been exempt.
The Biden administration started applying Title 42 to Venezuelans in October and began allowing 30,000 Venezuelans a month to enter the country through humanitarian parole, resulting in a drop in the number of Venezuelans crossing the border. In January, Mexico agreed to take more migrants expelled from the U.S., also helping to manage the numbers of people arriving at the border. But there was an uptick in March with the anticipation of the end to use of Title 42 and warmer weather, according to the Washington Office on Latin America.
After a lull in immigration at the end of the Obama administration — including net zero migration from Mexico — the number of people arriving at the border has jumped. World events, economic disparities, cartels’ expanding smuggling operations, congressional inaction and outdated immigration laws have meant the number of times border officers encounter people crossing into the country illegally has returned to figures recorded in the early 2000s.
So will the border be open or not secure if Title 42 ends?
Defining the border as "open" or not secure is more about political rhetoric.
If Title 42 ends, the government reverts to previous immigration law, which falls under Title 8 of the U.S. Code of federal statutes.
While border officers can expel people from the country more quickly under Title 42 because they can dispense with the asylum process, migrants aren't assessed penalties they would now face under Title 8: Among them is up to two years in prison if a person re-enters the country illegally after having been removed or deported. Also, people who are removed from the country will be prohibited from re-entering the country, even legally, for five years. If caught re-entering they could face felony charges, imprisonment and longer bans on re-entering the country.
Without those consequences, Mexican migrants and others have been using Title 42 “as a means to get multiple opportunities to enter the United States," said Ariel Ruiz Soto, a policy analyst at the Migration Policy Institute, a think tank. "That is counterproductive, because it in some ways incentivizes migrants to try multiple times, and the more times that migrants try, the more likely that they’re successful."
The administration has been requiring people who want to apply for asylum without crossing the border illegally to make appointments through the CBP One app, but the app has been frustrating for some when they fail after multiple attempts to get appointments, leaving them waiting in often dangerous and crowded conditions in Mexico. The frustration can lead them to try to enter illegally and then ask for asylum.
In 2019, before Title 42 went into effect, just 7% of migrants apprehended by the Border Patrol had previously been apprehended. The recidivism rate grew to 27% in fiscal year 2022.
According to the libertarian Cato Institute, Title 42 has been used mostly to expel single adults from Mexico and the Northern Triangle. Last year, nearly half of those single adults had previously been arrested under Title 42, Cato reported. In addition, the institute found, the number of people who were detected crossing illegally but not arrested, people known as "gotaways," rose under Title 42 from 12,500 a month in 2019 to an average of 50,000 last year.
Why are cities on the border and in the interior nervous about what comes next?
Even with Title 42 in place, nonprofit groups running shelters in the U.S., as well as officials in border cities, have had to respond to large groups of people after they've been released by Customs and Border Protection.
Providing the migrants with housing, food, clothing and travel assistance to their ultimate destinations — often out of state to where they have family or friends — takes money, volunteers and space.
Some officials expect there will be a spike in people coming to the border when Title 42 ends, including those coming legally to the ports of entry to request asylum. In addition, there are concerns the increase in the number of people and the added processing time could clog regular movement at ports of entry.
In addition, Republicans such as Texas Gov. Greg Abbott and Florida Gov. Ron DeSantis have been making political points by busing and flying migrants from Texas to Democratic-run cities. DeSantis caused a stir when he sent two planes to Texas, which flew migrants to Florida and then deposited them in Martha's Vineyard, Massachusetts. Abbott said in a letter he will keep busing people to Democratic cities after Title 42 is lifted.
What other factors affect migration and border policy?
Congress is working on legislation to address immigration and border security, but politically a bipartisan deal is unlikely, and most of what is moving in Congress is focused on enforcement only.
Weather always is a factor, with warmer temperatures bringing seasonal flows, as are job availability and the need for laborers in various industries in the U.S.
The focus on the numbers arriving at the border now may be obscuring views of the changing immigration patterns, Ruiz Soto said. New immigration trends are emerging, with increases in arrivals from Colombia, Ecuador and Peru.
"Our U.S. immigration system is designed to deter Mexican immigration," Ruiz Soto said. "As migration flows become increasingly hemispheric, it is clear our immigration system is outdated and significantly ill-equipped."