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.
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.
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."
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.
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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