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The facts about the legal battle over Title 42 and what its end could mean for U.S. border policy

The facts about the legal battle over Title 42 and what its end could mean for U.S. border policy
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A decades-old debate around how the U.S. should treat migrants who enter the country without legal permission, including those seeking asylum, has been recently reignited by disagreements over whether the government should end the so-called Title 42 pandemic-era border restrictions.

Since March 2020, when the Trump administration cited the emerging coronavirus pandemic to invoke Title 42, the public health law has given U.S. border authorities the power to swiftly expel some migrants from the country without allowing them to make an asylum claim.

The Supreme Court in December prevented the Biden administration from ending Title 42 while the justices consider a request by a group of Republican-led states that want to continue the expulsions, which were declared unlawful by a lower court.

Because U.S. border officials have relied on Title 42 for nearly three years, its end will pose major humanitarian and operational challenges for the government, and likely fuel a spike in migrant arrivals, at least in the short term.

But increasing numbers of migrants have not been subject to Title 42 anyhow due to diplomatic, logistical and policy reasons. Migrant arrivals have also already soared to historically high levels. And the end of Title 42 will not mean that migrants will not face deportation for entering the U.S. unlawfully.

Here are the facts about the legal battle over Title 42, how the rule is currently being enforced and what its potential termination could mean for U.S. border policy.

Why is the Supreme Court debating Title 42’s future?

When the Centers for Disease and Control Prevention invoked Title 42 in early 2020, the Trump administration said the policy would be a temporary measure to control the spread of the coronavirus.

Supreme Court Justice Pauses Lifting of Title 42 Border Rule
Migrants wait at the US and Mexico border wall in El Paso, Texas, US, on Thursday, Dec. 22, 2022.

Bloomberg


While the Biden administration continued the expulsions for over a year and initially defended them as necessary to safeguard public health, it decided to discontinue Title 42 in the spring of 2022. The CDC determined in April that the rule was no longer needed to curb COVID outbreaks, citing improving pandemic conditions.

However, at the request of a coalition of Republican-led states, a federal judge in Louisiana barred officials from ending Title 42, saying the Biden administration had not taken adequate steps required to terminate the policy.

Then, on Nov. 15, another federal judge declared Title 42 unlawful, saying the CDC had not properly explained the policy’ public health rationale or considered its impact on asylum-seekers. At the request of the Biden administration, the judge gave border officials 5 weeks, until Dec. 21, to end Title 42.

Nineteen Republican-led states asked several courts to delay Title 42’s rescission indefinitely, warning that chaos would ensue otherwise. After their request was denied by lower courts, states asked the Supreme Court to intervene. 

On Dec. 27, the Supreme Court said it would suspend the lower court order that found Title 42 to be illegal until it decided whether the Republican-led states should be allowed to intervene in the case, likely postponing the policy’s termination for months.

Does the policy have a public health basis?

The law the government has cited to expel migrants, found in Title 42 of the U.S. code, gives officials “the power to prohibit, in whole or in part, the introduction of persons and property” to stop the spread of a contagious disease.

For over two years, the CDC argued that Title 42 was needed to prevent coronavirus outbreaks inside border facilities and protect public health resources. In April, however, the CDC said it could no longer authorize Title 42 because of improving pandemic conditions, including increased vaccination rates. 

But the stated rationale behind Title 42 has been contested by public health experts, including CDC officials, some of whom have said the agency faced political pressure to enact the measure, despite insufficient data to justify it. Title 42’s public health basis is also rarely invoked by those who support the measure.

The 19 Republican-led states that convinced the Supreme Court to delay Title 42’s end have mainly relied on the argument that lifting it will fuel an even greater increase in migrant arrivals. But the law underpinning Title 42 does not authorize expulsions on the basis of reducing or deterring illegal migration.

How is Title 42 currently being enforced?

For nearly three years, Title 42 has been the primary border-control tool the U.S. government has relied on during an unprecedented migration crisis. 

The government has argued Title 42 supersedes U.S. asylum law, which requires officials to screen migrants to ensure they are not deported to places where they face a credible threat of persecution because of their race, nationality, religion, politics or membership in a social group. But not all migrants face expulsion under Title 42.

In fiscal year 2022, a 12-month span that ended on Sept. 30, Border Patrol agents along the southern border stopped migrants 2.2 million times, a record high. Just over 1 million of those encounters resulted in migrants being expelled to Mexico or their home country under Title 42, government statistics show.

While the U.S. has carried out some expulsions via flights returning migrants to countries like Haiti, most migrants processed under Title 42 are expelled back to Mexico. Because of this, the Mexican government largely dictates who the U.S. can expel. Since Mexico has only officially accepted the returns of its citizens and nationals of Guatemala, Honduras, El Salvador and Venezuela, Title 42 is mainly applied to adult migrants from these countries. 

Deportations to Cuba, Nicaragua and Venezuela — which have seen tens of thousands of their citizens flee to the U.S. to escape economic and political turmoil — are limited or rejected by the governments there, and deportation flights to other far-flung countries are costly and not as frequent.

This means that most migrants who are not from Mexico or Central America’s Northern Triangle do not face expulsion under Title 42, and are instead processed under U.S. immigration law, which allows them to request asylum. Oftentimes, they are released with a court notice or instructions to check in with federal immigration officials in their respective U.S. destinations.

The Biden administration has also created Title 42 exemptions for certain groups, including unaccompanied children, Ukrainian refugees and migrants deemed to be vulnerable.

Record border arrivals of migrants who are not subject to Title 42 have increasingly reduced the use of the policy. In November, for example, only 29% of migrant encounters along the southern border resulted in Title 42 expulsions, and two-thirds of them involved Mexican migrants, federal statistics show. 

Has Title 42 reduced unlawful migration?

Proponents of Title 42 say it’s an effective border tool because it allows agents to quickly expel migrants with little field processing and limits the number of migrants allowed to access the asylum system, which Republicans argue is abused by people searching for better economic opportunities. 

But migrant arrivals along the southern border have soared to all-time highs in fiscal years 2021 and 2022, during which Title 42 has been the main migration control. The U.S. has also reported record levels of migration from countries where the U.S. does not conduct large-scale expulsions. 

While migration from Guatemala, Honduras and El Salvador dropped in the past year, the U.S. has processed record numbers of Cubans, Nicaraguans, Venezuelans, Colombians, Ecuadoreans, Peruvians, Russians and other nationalities. In November, U.S. border officials processed more Nicaraguans than migrants from Guatemala, Honduras and El Salvador combined, an unprecedented demographic shift.

Title 42’s enforcement has also contributed to a sharp increase in repeat border crossings as some migrants have sought to enter the U.S. multiple times after being expelled to Mexico because Title 42 does not carry criminal penalties or multi-year banishments from the country, unlike formal deportations. The recidivism rate of border crossings soared to 25% over the past two years, up from 7% in fiscal year 2019.

Will migrant arrivals increase once Title 42 ends?

The Biden administration has conceded that Title 42’s end will likely lead to a “temporary increase in unlawful border crossings.” Internally, the Department of Homeland Security has projected that daily migrant arrivals, which stood above 7,000 in November, could double once the expulsions are halted.

The projections of an even greater migrant influx once Title 42 is lifted is based on estimates of tens of thousands of migrants waiting in Mexico, and the rapid spread of information related to U.S. policy changes among would-be migrants and human smugglers.

The Biden administration has argued that illegal border crossings will drop after it is able to fully restore traditional immigration procedures, including a process known as expedited removal that allows the U.S. to quickly deport certain migrants. Officials have also said they will increase prosecutions of migrants who cross the border multiple times.

While Republican lawmakers have said the reversal of some Trump-era policies, such as a rule that required migrants to await their court hearings in Mexico, have fueled the record border arrivals in the past year, the Biden administration has argued the influx has been propelled by economic crises, political turmoil and repressive governments in many parts of Latin America and the Caribbean.

Desires to reunite with family already in the U.S., job opportunities in a tight American labor market and expectations of being able to stay in the country while their cases remain pending before an overwhelmed asylum system have also attracted migrants.

TOPSHOT-MEXICO-US-MIGRATION-TITLE 42
A migrant helps two Venezuelan children to cross the Rio Grande river from Ciudad Juarez, Chihuahua state, Mexico to El Paso, Texas, US in search of political asylum on December 27, 2022.

HERIKA MARTINEZ/AFP via Getty Images


How will migrants be processed once Title 42 expires?

Whenever Title 42 is eventually lifted, all migrants stopped by U.S. border officials will be processed under U.S. immigration law, which governs when migrants should be deported, detained or allowed to stay in the country. Officials will also need to fully comply with U.S. asylum law, which generally allows migrants on American soil to request asylum, regardless of whether they entered the country illegally. 

Migrants who do not claim asylum or fail to show credible fear of persecution could face rapid deportation under the expedited removal policy. Those who request asylum would need to be screened by a U.S. asylum officer or given a chance to plead their case before an immigration judge.

Just like it has under Title 42, the fate of migrants after the rule ends will hinge on their age, nationality, logistical reasons and other factors. Migrants who are not quickly deported from the border, either because they are asylum-seekers or due to their home countries rejecting their return, could either be sent to long-term detention centers or released with court or interview appointments pending the resolution of their cases.

Migrants who are able to establish they are fleeing persecution based on their race, nationality, race, religion, political views or membership in a particular social group could win asylum, but applicants are currently waiting an average of several years to get a decision given the massively backlogged immigration court system.

The Biden administration launched a pilot program in June to condense asylum reviews for migrants who recently crossed the southern border from years to months, but the policy has yet to be implemented at scale. 



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