All your title 42 questions, answered
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John --  

In recent days, we haven't been able to turn on the news or read up on
the latest in immigration without being bombarded with questions,
reporting, and criticism of the Biden administration's decision to
suspend Title 42, the pandemic-era public health law that allows U.S.
Customs and Border Protection to deny individuals entrance into the
United States. The rule has been used the past two years to expel
arriving migrants, including hundreds of thousands of families and
children, without allowing them to first apply for asylum or
humanitarian protections.  

We know that with the uncertainty of any policy that has been in place
for nearly two years comes many questions: What does the end of this
policy mean for migrants seeking protection and for management of
migration at our Southern border? What will happen when the rule is
lifted on May 23rd? That's why we've put together an explainer
,
including the answers to these questions and more.  

Read our explainer on Title 42 here.
  

Title 42 is a pandemic-era policy derived from a previously obscure
provision of a 1944 public health bill that authorizes health officials
to prevent individuals from entering the U.S. if there is a "serious
danger" that they might introduce a communicable disease. The policy has
applied only to asylum seekers and other irregular migrants, not U.S.
citizens, visa holders, or anyone else crossing the border between
Mexico and Canada.  

Title 42 is not an immigration law and is not designed to properly
manage or secure the border. It has been used instead to supersede
federal immigration law at the border and abrogate legal rights that
have been guaranteed to arriving migrants for decades. 

In the past two years, Title 42 has been used over 1.7 million times at
the border to expel arriving migrants without offering them the chance
to apply for humanitarian protection. It has remained in place even as
other pandemic restrictions were lifted across the country - including
for the millions of travelers who cross the border each month for
tourism, trade, and other purposes.  

Read more about what Title 42 is, and why it was put into effect.
  

The reliance on Title 42 for border management rather than laws actually
designed to govern immigration at the border has created perverse
incentives - benefiting cartels and transnational criminal
organizations and encouraging an increasing number of migrants to
attempt to cross into the U.S. 

After Title 42 was put into place at the border, migrant encounters
increased every month for 15 straight months - in part because Title
42 incentivizes migrants to attempt to cross multiple times between
ports of entry.  

Because they are not based in existing immigration or border laws, Title
42 expulsions carry zero penalties for repeat entries and they do not
distinguish between those with meritorious claims to protection and
those attempting to enter the U.S. undetected. 

The use of Title 42 and the related increase in recidivism and overall
encounters has caused significant challenges for border officials. In
June 2021, Border Patrol officials reported that Title 42 "negatively
affected enforcement."  

And according to three human smugglers interviewed by Reuters, Title 42
has been a major windfall: "It's great for us," they said, "We're
making more money."  

Read more on how Title 42 has impacted managing our Southern border.
  

Title 42 has also taken an unimaginable toll on the migrants expelled to
Mexico or their home countries without the opportunity to seek asylum or
other protections under U.S. law. A Human Rights First report has
documented at least 9,886 incidents of kidnapping, torture, rape, and
other violent attacks on those who have been blocked or expelled to
Mexico by Title 42. 

These expulsions will occur rapidly - sometimes in the middle of the
night, and with barely any consideration for the safety or conditions
where migrants are being expelled.  

So, what happens when Title 42 is lifted?  

In the long run, lifting Title 42 will reduce recidivism and drive down
overall arrival numbers. It will allow for border management that
actually manages the border - policies with consequences for repeat
crossers and protections for those fleeing persecution with credible
claims.  

But due to seasonal trends, it is probable that migrant arrivals will
continue to increase throughout the spring and early summer, with the
planned suspension of Title 42 likely to - at least initially -
drive those numbers up further. This increase in arrivals are likely to
put significant strain on our border management and processing
capacity.  

The Biden administration is planning for these increases - planning to
surge resources and personnel at the border, to implement more humane
and orderly processing procedures while rapidly returning those without
credible claims, and to work with other countries in the hemisphere to
manage migration.  

Title 42 is part of the problem, and ending it on May 23 will be a
positive step forward. But as a country we still lack meaningful,
long-term solutions for managing our Southern Border. Responsibility
falls not only with the Biden administration - who must lead by
example - but also with Congress, who have a responsibility to stop
pointing fingers and instead come to the table to figure out real,
lasting solutions. Solutions that uphold our immigration laws rather
than undermine them, that provide for effective border security and
management, that improve infrastructure at ports of entry, and that
address the need for orderly and compassionate processing of arriving
migrants. Congress has a responsibility to enact transformational,
bipartisan and practical reforms that will not only promote economic
growth, but also reflect our values.  

Read our full explainer on Title 42 and what the end of this policy
means for our border.
  

Thank you for all you do to help us enact bipartisan immigration
reform,  

Danilo Zak 

**Policy & Advocacy Manager 
National Immigration Forum **

 

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