What the end of a pandemic-era health rule will mean for the southern border
Follow our live updates about the end of title 42.
Every day, thousands of migrants illegally cross the southern border of the United States. Fleeing violence, authoritarian states and extreme poverty, they brave the perilous journey in the hope that once they enter the United States they can stay.
In recent years, there have historically been many illegal border crossings – part of what the United Nations has identified as a global migration trend. But U.S. officials expect the number to rise even higher at the southern border in the coming days, as a pandemic-era health rule called Title 42 will no longer be in effect. More illegal crossings mean additional pressure on an already overburdened system.
We explain the policy, what will change and what the consequences are.
What is Title 42?
Title 42 is the section of the Public Health Service Act of 1944 which allows the government to stop the entry of people and imports to prevent the introduction of a communicable disease from beyond the borders of the continental United States.
In March 2020, as Covid-19 spread across the country, the Trump administration authorized the use of the rule under the national public health emergency to quickly deport people who had illegally entered the United States.
Two months ago, the Biden administration said that on May 11, the public health crisis designation would end. Officials said this effectively meant the use of Title 42 would also end.
How does it work?
The rule allows border officials to skip the time-consuming steps normally required to process migrants, including the process by which someone can apply for asylum. Using Title 42 takes about 10 minutes compared to the time it takes to process migrants under existing laws, which can be an hour or more. The rule allows border officials to immediately deport millions of migrants, a move that drew immediate criticism from human rights lawyers and public health experts who said it was an attempt by the Trump administration to prevent migrants from seeking asylum.
When the Biden administration took office, top officials held meetings about revoking Title 42. But as illegal crossings on the southern border began to rise in the spring of 2021, removing the authority was seen by the White House as a gamble. with Republicans repeatedly attacking the president for lax border enforcement policies.
Essentially, Title 42 had become the most effective policy for controlling a large number of border crossings without leading to regular overcrowding at border posts and overwhelming communities where migrants often moved after being released from custody. (The Biden administration tried last year to end its use of the public health order, but was twice stopped by the court. During the same time, it expanded its use of the policy on migrants from certain countries.)
Was every migrant deported under Title 42?
No, not even close. In practice, the public health order was not applied to all migrants. Since it came into effect, title 42 has been used about a third of the time. Most of the people expelled under the regime came from Mexico and Central America. While this meant millions of migrants were deported under Title 42, more than 1.8 million migrants have been allowed to stay in the country temporarily until facing an immigration court, and in some cases claim they should be granted asylum. Under Title 42, people could also cross as many times as they wanted without facing harsher penalties. (Under the government’s immigration law, penalties are increased when someone is caught more than once.)
The Biden administration has repeatedly said the border was closed, but as many migrants were able to stay, it incentivized others to make the trip to the United States to take their chance.
How will things change?
Once border officials can no longer use Title 42 to immediately deport migrants, they will resort to the usual laws to deal with illegal border crossings, which will take longer, among other things, because it allows migrants to apply for asylum. This lengthy administrative processing will result in migrants staying longer in detention centres. Once those facilities reach maximum capacity, it becomes more likely that people will suffer inhumane conditions as they crowd under bridges and outside shelters.
What’s going to get harder?
In the coming days and weeks, dealing with the large numbers of migrants in a safe and orderly manner will be the biggest challenge. The Biden administration has introduced new policies to discourage illegal crossings — some of which have been criticized by immigration advocates — but has done little to address the immediate problem of dealing with the expected large numbers of people.
Border officials will be forced to release migrants more frequently into border communities, increasing the burden on local officials and shelter managers to provide support across the country. It will also become more difficult for migrants to find asylum lawyers to plead their case, as there is already a shortage of people doing this work.
But officials hope it will get easier at some point as more migrants are punished for crossing the border multiple times. The Biden administration’s new measures are designed to further restrict access to asylum and create legal humanitarian avenues for other migrants, which officials hope will also lead to fewer illegal crossings.