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 on 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 adviser Stephen Miller pressured the Centers for Disease Control and Prevention to exert its public health authority to impose border restrictions during the coronavirus pandemic.
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 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, resulting in 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 country.
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 Cuellar (Texas) a moderate 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.
Via The Hill