The Biden White House is expected to stop Title 42 expulsions on the southern border in the next weeks, Title 42 has accounted for more than 1.6 million encounters since the policy was adopted in 2020. The policy allows federal immigration officers to quickly expel undocumented migrants caught at the border under the rationale of preventing the spread of infectious diseases, COVID-19 in this case.
The move has created controversy as it is expected that the decision will result in a radical increase in the number of unlawful crossings on the Mexican-American border, which has been on a sustained rise since Biden took office last year.
Senate Republicans have said they will introduce an amendment tying up the latest COVID relief bill to legal protections of Title 42. Senate Minority Leader Mitch McConnell claims that scrapping the policy would “spark a humanitarian and security crisis as we’ve never seen.” Some Democrats are similarly worried about lifting Title 42, including Senators Mark Kelly (D-AZ) and Maggie Hassan (D-NH).
Eliminating Title 42 has been a constant demand by progressive immigration groups since the Trump administration imposed the policy at the beginning of the pandemic. Groups like American Progress have argued that Title 42 expulsions are not based on health policy and that repealing it is a necessary step to rebuilding the U.S. asylum system.
The lifting of Title 42 is not one of the most popular Biden policies, to say the least. A Morning Consult poll shows that a significant majority (56%) of Americans are set against ending the measure, with even 27% of registered Democrats saying they do not support Biden’s expected decision.
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With so much political discourse and conflict surrounding Title 42, it is vital to understand the details of this policy, its effects, and the potential implications that its removal might have for the situation at the southern border.
What is Title 42?
Title 42 is not the name of a policy or a law that was drafted during the Trump Administration, but it refers to a section in the U.S. Code, specifically Title 42 Section 265, that allows authorities to “have the power to prohibit, in whole or in part, the introduction of persons and property” from countries that have been designed by the Surgeon General represents a “serious danger” for the public health of the country due to an infectious disease.
Normally, migrants who reached the country could make a request for asylum as they reached the U.S., which would force American authorities to process the migrants’ asylum case in the country unless they are eligible for the third-country protocol (known as “Remain in Mexico”) implemented by the Trump administration.
Title 42, however, allows immigration authorities to expel asylum applicants in order to avoid the spread of COVID-19 in immigration facilities where they were supposed to be held until their request is processed.
The effects of Title 42 on the Southern Border
The policy has played a fundamental role in the way the southern border is policed over the last couple of years. According to USCIS data, Title 42 has been one of the most used legal instruments by Border patrol to expel captured undocumented immigrants on the Southern border, as 1,721,035 of the nationwide encounters have been processed under the authority of Title 42.
The implementation of Title 42 has deterred immigrants who wish to come to the United States and apply for asylum, a process that allows applicants to get a work permit while their process is being processed through the immigration system. This process, however, is something that could take years as the immigration courts have a backlog of more than 1.5 million cases.
Title 42 has also had a rather unexpected effect: a lot of people are repeatedly trying to cross the border. Since many migrants who cross are not particularly looking to apply for asylum but to get into the United States without being caught, Title 42 allows them to be sent back to Mexico to try another border cross later on. This explains why the recidivism rates—the percentage of people repeatedly trying to cross the border—have exploded over the last couple of years, going from 7% in FY2019 to 27% in FY2022.
Why is Title 42 controversial?
Opponents of Title 42 have argued that the measure is deficient in both border and health policy. The ACLU has argued that Title 42 has not been defended by the CDC as a public health tool and the liberal think-tank American Progress has noted that some health experts have argued that Title 42 is “a scientifically baseless policy that has not been proven to protect the public from COVID-19.”
Opponents also argue that Title 42 has prevented immigrants who might be looking for a legitimate opportunity to claim asylum in the United States to do so and have been either sent to border towns or migrant camps to wait for them to be deported to their countries of origins or directly deported from the United States without the opportunity to apply for asylum.
Other opponents of Title 42 have raised interesting points about the deficiencies of the policy. In remarks to El American, Sam Peak an immigration policy analyst, said that Title 42 “essentially neutered America’s ability to penalize people for repeat crossings” as title 42 is a health law -not immigration law – these expulsions are very fast and provide “no authority to punish people for repeat crossings.” Peak pointed out the extremely high rate of recidivism as evidence of how title 42 has not been effective at deterring border crossings.
Peak also said that Title 42 has actually provided unexpected benefits to cartels who traffic people to the border as they are more able to bring people to the American border several times. He also said that the short processing time has made it more difficult for Border Patrol to acquire enough intelligence on the way cartels and criminal organizations transport people to the border, saying that “not only have smuggling networks have grown and their profitability in size and capability and influence, but we’re not gathering as much information from them anymore.”
Supporters of keeping Title 42 have a very different view. Brandon Judd, the president of the Border Patrol’s union, said in an interview with the Daily Mail that eliminating Title 42 “sends the wrong message, it’s the wrong decisions and it’s just going to put our citizens at more peril” and that “Now they’re talking about getting rid of the only deterrent that they left in place, which was Title 42, (…) they’re talking about doing it well, a pandemic is still ongoing in this country.”
In remarks to El American, Cesar Ybarra from the conservative grassroots organization Freedom Works said that the double standard the administration has shown in COVID regulations is unsustainable saying that “As they use COVID-19 as an excuse to extend mask mandates on airplanes and the moratorium on student loan payments, the CDC is lifting its order to allow for the expedited removal of migrants coming into the country. This inconsistency continues to sow distrust in our public health institutions.”
This is a point that has been also used by legislators who are pressuring the government to only end Title 42 after it had rescinded the COVID-19 public health emergency declaration and presented an organized plan to end title 42.
However, the strongest argument for keeping Title 42 is rooted in the uncertainty of what would happen if the Biden administration revokes it.
What will happen if title 42 is revoked?
It is considered that if Title 42 gets revoked, the US Border patrol will face a new influx of migrants trying to cross the border, a new crisis in an issue that has already been experiencing a year of increased numbers of migrants crossing the border.
Mark Morgan, from the conservative think tank Heritage Foundation, argued in an article that ending Title 42 would surely risk “unleashing a tidal wave of increased risk and exposure from COVID-19 from outside our borders.” Morgan also argued that the countries that are home to most migrants who try to cross the border do not have the same vaccine and testing capabilities as the United States.
Morgan also said that the ending of Title 42, combined with Biden’s asylum policies shows that the Administration’s goal is “about getting better and faster at processing and releasing those who illegally enter our country, regardless of what disease they may be carrying.”
This is not something that has only been pointed out by conservatives. Democrats who have opposed the measure have said repeatedly that they are extremely concerned over the lack of planning the administration is showing, and that removing Title 42 without a viable alternative will create an extremely problematic situation at the border.
The lack of preparedness of the U.S. border authorities is something that has been evident for a while. Last year, The Washington Post published an article describing how border patrol agents have been overwhelmed by the sheer number of migrants crossing the border, with agents saying that at least 1,000 migrants have slipped through the border without being properly identified by American authorities.
The debate over the effectiveness and scope of Title 42 has raged since the Trump administration started to implement it in 2020 and, like almost any issue in migratory policy, the jury is still out over its effectiveness. What appears clear, however, is that by repealing Title 42, the Biden administration is setting itself for a new border crisis just a few months before the crucial 2022 midterm elections.