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EXPLAINED: Title 42, the policy at the center of the border debate

Migrants, many from Haiti, are seen wading between the United States and Mexico on the Rio Grande on Sept. 21, 2021, in Del Rio, Texas. (AP Photo/Julio Cortez)

EXPLAINED: Title 42, the policy at the center of the border debate

Anna Giaritelli

April 18, 06:15 AM April 18, 06:16 AM

The southern border is expected to see an unprecedented humanitarian and security crisis due to President Joe Biden’s plans to end the pandemic policy of turning away migrants known as Title 42.

Biden’s decision has been met with fury from Republicans and even some Democrats who have accused the White House of setting up the U.S. immigration system for failure.

Here’s what to know about Title 42.

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The beginning of Title 42

One week after President Donald Trump declared a national emergency over the coronavirus pandemic on March 13, 2020, the Centers for Disease Control and Prevention invoked Title 42 of the Public Health Service Act of 1944, giving it the ability to deny the admission of goods and people who pose a risk of spreading a communicable disease.

By invoking Title 42, the CDC recommended to U.S. Customs and Border Protection that all noncitizens seeking asylum at ports of entry and those who crossed illegally between the ports be immediately expelled back into Mexico. The change meant Border Patrol agents would not take people into custody, further risking the spread of the coronavirus in law enforcement facilities.

Carrying out Title 42

The temporary policy was put into effect March 21, 2020, and could be renewed after 60 days. The CDC has renewed it for two years, and in that time, the United States has expelled 1.6 million people through the authority, though some were turned away more than once.

The Trump administration enforced Title 42 to a greater extent than the Biden administration has. Under Trump, virtually all illegal immigrants were expelled to Mexico or their home country.

Expulsions became more complicated in late 2020, when people from countries beyond Mexico and Central America began crossing the border at higher rates than ever seen in the Border Patrol’s 98-year history. Because the Mexican government refused to accept back migrants from countries beyond Central America, the U.S. was forced to take them into custody.

Some Mexican states refused to accept back migrants traveling with a family member if the child was over 7 years old. In response, Border Patrol stopped immediately expelling those families.

Families unable to be returned south of the border must be taken into Border Patrol custody. Once they are processed, families are turned over to Immigration and Customs Enforcement. ICE used to hold families at its family residential centers for up to 20 days before it would have to release them due to a court ruling. Because 1.5 million cases are pending before the 500 judges of the U.S. immigration court system, having cases resolved in 20 days is impossible. The Biden administration has also ceased using family residential centers, opting to release families immediately.

Biden slows expulsions

When Biden took office in January 2021, his administration barred the Border Patrol from turning away children who showed up at the border without a parent, known as unaccompanied minors.

He also immediately halted deportations for 100 days, suspended border wall construction, and vowed to rescind initiatives that turned away asylum-seekers at the nation’s borders — moves that sent a signal to the world that likely prompted many to travel to the U.S. In addition, the pandemic has had the harshest economic effect on Latin American nations, leading more people to flee.

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The Biden administration announced in early April that it would end Title 42 on May 23. However, the decision to go forward raises the prospect of further chaos at the border before the midterm elections.

Where Democrats and Republicans stand

Immigrant activists and Democrats have fought Title 42 because it prevents migrants from making asylum claims. In addition, migrants who return to Mexico face extremely dangerous situations, being preyed upon by cartels, and living in terrible conditions, often outside in tents, according to the Washington Office on Latin America, a research and advocacy human rights organization.

The expulsions also mean those who illegally cross the border cannot be detained and thus referred for prosecution and face the consequences, which can serve as a deterrent. Recidivism, or the rate at which people cross the border multiple times, has tripled under Title 42.

Republicans have long opposed ending Title 42, warning that without a mechanism to expel people immediately, more will come, and U.S. border agents will be overwhelmed and lose control of the border to migrants and cartels. In 2021, more than 2 million people were stopped while attempting to enter the U.S. from Mexico illegally in 2021, an astronomical figure compared to recent years. In a 21-state lawsuit filed in Louisiana, Republican attorneys general argued that the Biden administration failed to consider the impact undoing Title 42 would have on them.

Opponents, including the American Civil Liberties Union, sued the Trump administration for expelling migrant families before without allowing them to seek asylum.

But Democrats are increasingly speaking out against the Biden administration’s plans ahead of the election. Five Senate Democrats joined six Republicans in April to introduce a bill that would require a 60-day delay before Title 4 can end. The bill would also require the Department of Homeland Security to submit a plan to Congress for winding down the policy without creating disaster.

Health policy used for immigration purposes

Theresa Cardinal Brown, the managing director of immigration and cross-border policy at the Bipartisan Policy Center, noted that Title 42 has been used as a border management policy, not a health protocol.

“In legal terms, Title 42 is a health policy, issued under public health authorities,” Brown wrote in an email. “In practical terms, because it only applies to migrants entering from Mexico or Canada without documents, it has been used to manage migration at the U.S.-Mexico border since it was put in place in March 2020 which makes it an immigration policy as well.”

Immigration restrictionist group NumbersUSA Vice President Chris Chmielenski views Title 42 as an immigration policy because it “dictates who can come to the U.S., who can’t come, and who can stay.”

“The intent of Congress in passing Title 42 was to give clear authority to the Surgeon General to decide who can come and who can’t come during a global health crisis to best serve the interests of the citizens,” Chmielenski wrote in an email. “Immigration policy, first and foremost, should serve the interests of U.S. citizens.”

DHS Secretary Alejandro Mayorkas has maintained that Title 42 “is not an immigration authority, but rather a public health authority.”

What will happen when Title 42 ends?

The major question is how the Biden administration will prepare for and respond to Title 42 ending on May 23. The Biden administration is said to be concerned that walking back Title 42 could prompt a “mass migration event.”

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Between 5,000 and 7,000 noncitizens have been encountered attempting to cross the border illegally each day over the past year. The DHS is specifically concerned that Mexican cartels will take advantage of the forthcoming change in border policy and attempt to push as many people into the country as possible. The DHS is planning for a worst-case scenario of 18,000 people a day in the six weeks following May 23, far beyond the 1,000 that the Obama administration had said would constitute a crisis.

A further escalation of illegal immigration and the potential for mass releases of illegal immigrants into the interior of the U.S. would further damage Biden’s standing months ahead of the midterm elections, adding to problems for Democrats.

More than 283,000 migrants who illegally crossed the border from Mexico between October 2020 and September 2021 were let into the U.S. despite the Biden administration’s claims that it was immediately turning away adults and families. Border Patrol agents were so overwhelmed with the volume of illegal immigrants showing up this year that they started releasing migrants at masse into communities without providing them the legal documents that mandate they appear before an immigration judge about their unlawful entry. Of the 283,000 releases, about 95,000 noncitizens were released without inputting them into tracking systems.

The DHS has shared that it is working with the State, Health and Human Services, and Justice departments to move personnel to the border, but it has not shared any details of its plans besides bullet points.

Is there a quick fix?

Once Title 42 ends, people who are apprehended illegally crossing the border or deemed inadmissible for entry at the ports will face one of three options, according to Brown.

The government could use a process known as expedited removal to repatriate that person to their home country, though it is contingent on that person not claiming a fear of being returned. However, it’s not clear if the Mexican government will accept non-Mexicans. If the person did claim asylum during the expedited removal process, they would undergo an initial asylum screening called a credible fear interview and be referred to immigration court if they pass.

Others will be referred directly to immigration court and likely released into the U.S. pending the resolution of their case. Some could be held in ICE detention facilities, though the pandemic and the Biden administration’s aversion to detaining people for civil offenses makes detention far less likely. At present, 216,450 immigrants released into the U.S. are not in detention but are being monitored through technology programs. Fewer than 20,000 people are in detention, according to April data from the Transactional Records Access Clearinghouse, a research organization at Syracuse University in New York.

Finally, some migrants may be returned to Mexico under a policy implemented during the Trump administration, the Migrant Protection Protocols. Known informally as the “Remain in Mexico” policy, it forces asylum-seekers to go back to Mexico for weeks to months while they wait to appear in court, rather than releasing them into the U.S. The Biden administration unsuccessfully tried to end the policy last year, but the Supreme Court ordered it be reinstated.

With so many people crossing the border from countries far beyond Central America, it makes it more challenging for the U.S. to remove those people to well over 100 countries.

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