Title 42 Expires Today: What Is It and How Will Its End Affect U.S. Immigration Policy?

The curtain falls today on the COVID-19 asylum restrictions that have facilitated the swift expulsion of migrants at the southern border over the past three years. Stemming from the authority vested in Title 42 of a 1944 public health law, these restrictions were implemented with the intention of safeguarding public health by curbing migration. The termination of Title 42 raises a multitude of questions regarding the future of migration at the U.S.-Mexico border, as the Biden administration braces for a potential surge in migrants, conceding that things will be “chaotic” for some time.

But what exactly is Title 42? In the nascent phase of the coronavirus pandemic, the U.S. Centers for Disease Control and Prevention (CDC) promulgated a public health order with the primary objective of curtailing the proliferation of Covid-19. This order endowed the authorities with the capacity to expeditiously deport migrants at U.S. land borders. Aptly labeled Title 42, this policy draws its nomenclature from the particular section of the U.S. code that conferred upon the CDC director the power to enact it.

At the outset, the Biden administration elected to uphold this policy, notwithstanding fervent pleas from numerous Democrats imploring President Joe Biden to revoke it. Nevertheless, certain factions, particularly those hailing from border states, advocated for its preservation, contending that the United States was inadequately equipped to cope with an inundation of asylum-seekers.

Ever since its inception, Title 42 has been invoked a staggering 2.8 million times to facilitate the expulsion of migrants. It is worth highlighting that this policy granted an exemption to unaccompanied children, recognizing the unique vulnerabilities they face. Furthermore, the implementation of Title 42 has revealed marked disparities in its enforcement among various nationalities, primarily due to the intricacies entailed in deporting individuals to particular countries like Venezuela and Cuba.

The decision to end this policy coincides with the termination of the national COVID-19 public health emergency by the Biden administration. The emergency declaration served as the legal foundation for Title 42's border restrictions, along with various other measures. Notably, this is not the first time that the utilization of Title 42 has been on the verge of expiration. In April 2022, the CDC declared that the rule was no longer necessary due to the wider availability of vaccines and treatments. Nevertheless, Republican-leaning states filed lawsuits to preserve its implementation.

As we cast our gaze towards the future, the termination of Title 42 looms large and is poised to act as a catalyst for a notable upswing in the number of migrants embarking on their quest to cross into the United States.

With immediate effect, asylum-seekers will be subjected to comprehensive interviews conducted by immigration officers. Those who are deemed to possess a "credible fear" of persecution in their countries of origin will be permitted to remain within the confines of the United States until a final determination is reached. However, it is important to note that this evaluation process often spans across multiple years, subjecting asylum-seekers to an arduous and protracted journey.

One pressing concern is that migrants may perceive a greater likelihood of obtaining asylum in the U.S. without Title 42, leading to a surge in attempts to enter the country. This could strain the capacity of U.S. Customs and Border Protection agents, diverting their attention from other crucial responsibilities such as combating smuggling and facilitating cross-border trade, which amounts to billions of dollars.

In preparation for the impending conclusion of the policy, the Biden administration has proactively implemented measures to tackle the repercussions. In the absence of Title 42, U.S. immigration authorities will pivot back to well-established protocols to confront an unprecedented surge of mass migration. Migrants will undergo one of three possible outcomes: expulsion from the country, detention, or release into the United States while their cases navigate the intricate pathways of the immigration court system.

A multitude of migrants, numbering in the thousands, have surged into the United States this week, driven by the urgency to traverse the border before the end of Title 42. According to Brandon Judd, the president of a prominent union representing Border Patrol agents, the count of migrants apprehended while crossing the U.S.-Mexico border illicitly has exceeded the staggering figure of 10,000 individuals per day on both Monday and Tuesday.