Five things to know about the end of Title 42

When a federal judge in November declared Title 42 illegal, “with great reluctance” he allowed the Biden administration to keep implementing the border management policy for five weeks.

Those five weeks end Wednesday, and the Department of Homeland Security (DHS) will no longer have the tool it used to expel 78,477 foreign nationals in October.

Here are five things to know about Title 42:

It was controversial from the get go

Title 42 allows U.S. border officials to quickly expel foreign nationals at the border under the guise of public health protections related to the pandemic, disregarding migrants’ right to claim asylum.

It was first rolled out by the Trump administration, after then-White House advisor Stephen Miller pressured the Centers for Disease Control and Prevention (CDC) to exert its public health authority to impose border restrictions.

The Miller connection alone would render the policy toxic on the left, but immigrant advocates and some Democrats have decried the overtly political use of public health authority and Title 42’s effects on the already weakened asylum system.

Though the Biden administration has publicly pledged to protect the asylum process, it has also fought to keep Title 42 in place, an indication that DHS does not believe it can successfully manage current immigration flows without a draconian tool like Title 42.

“We need to reform our asylum system. … The administration has taken steps in that direction, for example, by empowering asylum officers to grant asylum at the interview stage to help clear the backlogs, but what we don’t need and we know for sure is Stephen Miller policies that expel migrants to danger and death and violate international law,” said Lorella Praeli, co-president at Community Change, a major progressive advocacy group.

It gutted the asylum system

U.S. officials have used Title 42 to turn away foreign nationals around 2.5 million times since 2020.

The total number of people affected by the policy is lower, in part because Title 42’s summary expulsions don’t lead to bookings for repeat unauthorized border crossings, leading to recidivism.

Still, Title 42 has made it virtually impossible for nationals of certain countries to claim asylum, while nationals of countries that don’t cut deals with the United States are processed using Title 8, the regular order that allows asylum applications.

That’s made it practically impossible for nationals of countries like Haiti to claim asylum in the United States, despite worsening conditions in that country. The Biden administration has repatriated more Haitians than any previous administration, including around 25,000 individuals in the year following the Haitian migrant crisis in Del Rio, Texas.

Other than Haitians, Title 42 has directly impacted Mexican nationals, as well as Guatemalan, Salvadoran and Honduran migrants, nationalities that Mexico has agreed to admit back into its territory.

While migration from Haiti, Mexico and Central America’s so-called Northern Triangle has remained significant, the big change in regional migration patterns has been a surge in Venezuelans, Nicaraguans and Cubans fleeing their countries.

“Those three countries are a little more difficult,” said Rep. Henry Cuéllar (D-Texas) a conservative Democrat from the border who’s pushed for Title 42 or similar measures to remain in place.

“There is no communication with them. I’ve heard from some of the folks that they know Nicaraguans, if they try to escape and they go back, they see them as traitors. So yes, those are difficult countries, but the rest of the countries we can work with,” added Cuéllar.

The Biden administration cut a deal with Mexico to receive up to 24,000 Venezuelan migrants under Title 42, but for the most part the United States has no way to quickly expel migrants back to its regional rivals.

And DHS is also reportedly looking to implement a version of another Miller immigration policy brainchild, a so-called “transit ban” that would unilaterally slash the number of migrants who qualify for asylum at the border. 

Biden has used it more than Trump

Of the 2,426,297 Title 42 encounters between March of 2020 and October of 2022, 1,966,740 were carried out since February 2021, President Biden’s first full month in office.

In other words, the Biden administration has carried out around four out of every five Title 42 expulsions.

That statistic has earned Biden little to no goodwill among Republicans, and it’s pushed away allies on the left who hoped to see all Trump-era immigration policies nixed on day one.

And Biden’s expulsions – which likely surpassed the two million mark in November or December – have also not discouraged migrants moving north through the Americas.

By many estimates, around 50,000 migrants could rush to the border if the order does indeed lift on Dec 21, and officials have expressed fear that border infrastructure and staffing will be unable to cope with that volume.

But there is not an infinite supply of migrants, and the trek through the Caribbean, parts of South and Central America and Mexico is itself a filter that’s traditionally discouraged long-distance migration by land.

Still, security and governance conditions in Mexico have worsened, sometimes having the opposite effect and prompting migrants who are waiting in the country to rush to the border.

That was the case for more than 1,000 Nicaraguans who earlier this month were kidnapped en masse about 450 miles south of the U.S. border, prompting them to stage a mass crossing into El Paso upon their release.

Biden’s detractors quickly took the mantle of defending Title 42 after the El Paso surge, despite the fact that a majority of the migrants involved in that incident were not subject to the policy.

It’s been an effective political cudgel

Title 42 has become a key negotiating point in immigration discussions, including in deals like the one brokered by Sens. Kyrsten Sinema (I-Ariz.) and Thom Tillis (R-N.C.), which eventually blew up.

Immigrant advocates were quick to blame the GOP for the latest immigration reform fizzle, saying the focus on order at the border is just a way to keep the issue alive.

“The opportunity was at hand for a bipartisan compromise that included provisions that even tilted heavier in the direction of long standing Republican priorities, but that still couldn’t overcome the GOP’s desire for ‘border first’ excuses for inaction and desire to have a so-called ‘crisis’ to run on and raise money off of. No one should harbor any illusion that the GOP insistence  to focus on the border is anything more than cynical ploy fear and division,” said Vanessa Cárdenas, executive director of America’s Voice, a progressive immigration advocacy group.

But Title 42 has also pitted some border Democrats against the rest of their party and against the immigration reform movement.

Lawmakers like Cuéllar have grown increasingly frustrated that the social costs of onboarding migrants into the United States regularly fall onto their communities.

“I always say there’s three groups of folks you need to listen to. Immigration folks, I understand that, immigration activists – I think this White House is only paying attention to them – but who’s listening to the men and women in green [Border Patrol]?” said Cuéllar.

“But more importantly, I would say, who’s listening to the border communities down there. I mean, they’re gonna be overwhelmed with the large numbers that we’ve been quoted about 50,000 people on the other side, waiting for Title 42 to go away,” he added.

Its fate is still up in the air

While Sullivan’s order to lift Title 42 on Dec. 21 remains in place, conservative states are attempting court action asking the judiciary to force the continuation of the policy.

The 20 GOP-led states are adding to a growing tangle of lawsuits that could result in a whiplash effect if the Biden administration is forced to reinstate Title 42 after Judge Emmet Sullivan ordered its end.

The Biden administration is already appealing Sullivan’s order, while at the same time appealing an earlier decision from a separate judge who ruled in favor of Title 42.

Still, the implementation of any quick expulsion policy, whether pandemic-related or not, will require the collaboration of foreign countries who must agree to receive returned migrants.

Mexico, which agreed to receive the 24,000 Venezuelans under Biden’s plan, will be under pressure to collaborate with the United States, both in managing migrant flows and in preventing anti-migrant crime that can detonate future rushes on the border.

Biden is due in January to visit Mexican President Andrés Manuel López Obrador alongside Canadian Prime Minister Justin Trudeau in a North American Leaders’ Summit that could reset trilateral migration policy.

“There’s two ways to negotiate with the Mexican government. You either have the Trump approach where you threaten them and add tariffs. Then you have the Obama approach. ​​The Obama approach was they would sit down and they would negotiate and see what was important to the Mexicans. Obama had agreements with Mexico, Guatemala, Central America – the other countries,” said Cuéllar.

“Trump also got agreements, but their approaches were day and night. I agree more with the Obama approach than the Trump threatening approach,” he added.