Earlier this year, President Biden announced his intentions to end Title 42, a policy that allowed the US Border Patrol to turn away migrants to prevent the spread of COVID-19.
Several Congressional Democrats praised Biden’s announcement as necessary and humane. But Congressional Republicans condemned the statement, and Democrats hailing from the border states joined them. Additionally, a bipartisan group of lawmakers challenged Biden’s decision in Congress, and over 20 states filed a federal lawsuit against Biden in court. Here’s where Title 42 stands and why rescinding it could lead to a significant increase in immigration.
What is Title 42?
Typically, when a migrant is caught entering the U.S. illegally, they’re processed under Title 8, which means they’re interviewed and asked if they’re seeking asylum in the U.S. due to fear of persecution. If they answer yes, and their fear is credible, Homeland Security schedules them for a full hearing before an Immigration Judge.
While he was in office, President Trump issued the “Migrant Protection Protocols” (MPP) policy, which required migrants seeking asylum to remain in Mexico while awaiting their court date. Before implementing MPP in 2019, migrants were often released into the U.S., allowing many to disappear into the interior and never show up for their hearing. Still, processing a migrant using MPP and Title 8 takes time.
Title 42 states, “Whenever the Surgeon General determines that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States and that this danger is so increased by the introduction of persons or property from such country that a suspension of the right to introduce such persons and property is required in the interest of the public health, the Surgeon General, in accordance with regulations approved by the President, shall have the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate in order to avert such danger, and for such period of time as he may deem necessary for such purpose.”
In other words, when there’s an infectious disease circulating, health officials can invoke Title 42 through agencies like the CDC. That then allows Border Patrol to immediately expel migrants trying to enter the U.S. instead of allowing them to seek asylum under Title 8.
On March 20, 2020, while Trump was still president, then CDC director Robert Redfield invoked Title 42 because of the threat of COVID. Since then, border patrol has used Title 42 to expel migrants over 1.7 million times.
Shifting Policies = Increased Migration
During his campaign, Biden promised that he’d approach immigration in a more fair and humane manner if elected. And just after his inauguration, he followed through with his pledge by ending MPP. More importantly, that order, along with Biden’s implicit and explicit stance on border security and immigration, led to an explosion in illegal crossings at the border — in Fiscal Year (FY) 2020, during Trump’s last year in office, there were 458,088 encounters at the southwest border, according to US Customs and Border Protection (CPB). In FY 2021, there were 1,734,686 encounters at the southwest border during Biden’s first year in office.
After Biden issued his executive order to end MPP, Texas and Missouri sued the government to keep MPP in place. They were successful, and in August 2021, a federal judge ordered the Biden administration to restart the policy — which they did in December 2021. However, the Biden administration appealed the ruling to the Supreme Court and expects a decision regarding MPP shortly.
In March, citing new directives from the CDC, the Biden administration announced Title 42 would end on May 23. In response, Progressive Democrats applauded the announcement, but Republicans and moderate Democrats voiced concern over increased immigration.
Democratic senators Kyrsten Sinema and Mark Kelly of Arizona stated in a letter to Biden, “Given the impacts that change to Title 42 could have on border communities, border security, and migrants, we urge your Administration not to make any changes to Title 42 implementation until you are completely ready to execute and coordinate a comprehensive plan that ensures a secure, orderly, and humane process at the border.”
A bipartisan group of senators introduced a bill to establish procedures for terminating Title 42, and over 20 states sued the Biden administration. In response to that lawsuit, a federal judge temporarily blocked the Biden administration from ending Title 42 before May 23. That was followed by yet another court order on May 20th that temporarily blocked the CDC’s move to end Title 42 on May 23.
18,000 and Counting
As of this writing, the Biden administration plans to appeal the latest ruling against lifting Title 42 to the Fifth Circuit. But regardless of how the Fifth Circuit rules, Title 42 is not standard immigration procedure, and eventually, its use will be retired.
Under Biden, there’s been a massive increase in illegal immigration. However, Title 42 allowing for the immediate expulsion has tempered those numbers — if you know you’re going to get kicked out, incentive dwindles.
Once Title 42 expires, Homeland Security intelligence officials expect daily illegal immigration encounters to more than double. In fact, they predict that approximately 25,000 migrants are waiting just across the border for Title 42 to end, and daily encounters could jump to 18,000.
Simply put, once Title 42 expires, there will be even more incentive to try and cross the border illegally. Therefore, expect immigration to increase exponentially over the coming months.
