Title 42’s end is raising alarms at the border

The looming end of Title 42 is framing the immigration debate ahead of 2024, even before its consequences are fully known.

Across the political spectrum, the relatively small policy change is being treated as a harbinger of doom and chaos at the border.

Warnings about the end of Title 42 have ranged from the pragmatic — Texas Democratic Reps. Joaquín Castro and Greg Casar have called for $38 million in preemptive Federal Emergency Management Agency funding — to the theatrical, with former Vice President Mike Pence warning that “a storm is coming.”

In March, U.S. officials encountered more than 191,000 migrants at the border with Mexico; administration officials have said they expect that number to go up significantly with the end of Title 42 on Thursday.

Yet border experts are uncertain about how the policy change will affect conditions on the ground, though most agree that a rise in crossings is likely, potentially through the summer.

Under Title 42, border officials are allowed to expel migrants they encounter at the border immediately, rather than processing them and giving them a chance to claim asylum.

The Border Patrol and Customs and Border Protection (CBP) have been implementing both Title 42 – an authority granted to them under the guise of pandemic protections – and Title 8, the regular processing statute for undocumented immigrants at the border.

In April, the Department of Homeland Security (DHS) announced that in response to the end of Title 42, it plans to carry out expedited removals using Title 8 authorities and establish two regional centers in Guatemala and Colombia where migrants can apply for asylum or other avenues to immigrate to the U.S.

Both titles of authority allow quick processing (either a summary expulsion under Title 42, or an expedited removal under Title 8) with the difference being that expedited removals create a paper trail and require screening for asylum claims.

Biden administration officials say the stiffer penalties of Title 8 removals, which carry a five-year bar on entering the United States, paired with better avenues to seek legal pathways to enter the U.S. will relieve pressure at the border.  

But activists are warning against those stiffer penalties, particularly the increased use of immigration detention.

A coalition of more than 240 nongovernmental organizations plans to announce Monday a plea to the Biden administration to avoid the use of immigrant detention to deal with post-Title 42 migrants.

“Mass detention of immigrants and asylum seekers places the United States further at odds with international norms and treaty obligations,” wrote the groups, including the American Civil Liberties Union, Amnesty International and the National Immigrant Justice Center (NIJC).

“Detention places people in conditions known to cause mental and physical harm and endanger their lives. Detention is not a deterrent to migrants who have no choice but to flee dangerous or violent conditions in search of a better life.”

With the end of Title 42, migrant crossings could rise for two main reasons: disinformation among migrants at the border and a bottleneck effect created by the implementation of Title 42.

Federal officials fear that smugglers and word of mouth among migrants have spread the belief that the end of Title 42 means an open border, or that mandatory asylum screenings are a backdoor into the United States.

Aaron Reichlin-Melnick, policy director with the American Immigration Council, said migration at the border is likely to tick up in the days following the end of Title 42, but that’s partially because of the bottleneck created by blocking asylum seekers, resulting in “large numbers of people who’ve been waiting for months and months at the border.” 

“There have been a lot of people who have been stuck in Mexico who have been waiting for Title 42 to end, because everyone’s known that eventually this was going to have to happen. I think we’re already seeing a significant increase in numbers, as that backlog essentially clears out in northern Mexico in the days following the end of Title 42,” he said on a call with reporters this week.

“And then, my expectation is that numbers will then fall as the administration imposes these so-called harsher consequences at the border.” 

Acting CBP Commissioner Troy Miller in April cited a U.N. figure that up to 660,000 migrants, including about 280,000 internally displaced Mexicans, were currently traversing Mexico en route to the U.S.

“But that’s only a couple of months’ worth of migration. Everyone who’s bottled up could’ve been gone in a couple of months,” said Adam Isacson, director of defense oversight at the Washington Office on Latin America.

And for the majority of people who’ve been expelled under Title 42 in recent months, the switch back to Title 8 is likely to deter them from crossing.

In March, 87,661 people were processed using Title 42, 60,958 of whom were Mexican nationals, and 56,177 were Mexican single adults.

Mexican nationals are broadly ineligible for asylum in the United States, meaning that in almost all cases, they would not pass a credible fear test to start their formal asylum claims, regardless of how they are processed by border authorities.

And the lack of paperwork for Title 42 expulsions of Mexican nationals has generated recidivism: Mexican nationals crossing the border and attempting another crossing if they are unsuccessful the first time.

Still, in Washington and some state capitals, the end of Title 42 has been treated as the type of brewing storm Pence described.

A bill from Sens. Kyrsten Sinema (I-Ariz.) and Thom Tillis (R-N.C.) would mimic Title 42 by creating a two-year authority that would allow DHS to rapidly expel migrants without allowing them to seek asylum.

Unlike the emergency public health order that underpins Title 42 and expires May 11, the new legislation would not rely on any public health authorities but otherwise keeps the crux of the policy: a bar on seeking asylum combined with swift expulsion. 

House Republicans last week also unveiled their own border package, combining several bills that collectively force the completion of former President Trump’s border wall, use various methods to limit asylum and block funding to any nonprofit that helps migrants navigate the U.S. immigration system.

That package contrasted with the Biden administration’s emphasis on regional migration controls — the White House released a memo Friday outlining its plan, rooted in “enforcement,” “deterrence” and “diplomacy.”

“House Republicans are pushing a MAGA agenda of chaos and inaction. They are playing politics when they should be joining the President in pursuing real solutions, – and they should answer for their repeated attempts to open our borders,” concluded the White House memo.

While the diplomatic aspect of the administration’s plan has encouraged some progressives on immigration, frustration abounds among advocates over the administration’s reliance on deterrent measures that attempt to scare off migrants.

That and the use of active-duty troops to support Border Patrol and CBP have caused some Democrats to cry foul, saying the administration’s actions perpetuate the false image of migrants as a threat to national security.

The administration’s insistence on treating migrants as a threat — implicitly siding with the Republican assessment of the problem, though presenting an alternate slate of policy solutions — is a missed opportunity, according to advocates.

“The end of Title 42 is an opportunity, not a threat — an opportunity for our leaders to stand up and affirm the United States’s role as a country that welcomes those seeking safety and embraces human rights,” said Heidi Altman, director of policy at NIJC.

“Instead, we’re stuck on a repeat loop of punitive policies driven by fear and hateful rhetoric. It’s shameful to see our elected officials turning to worn-out, cruel policies when constituents and communities are doing the real work of welcoming and integration, with very little support from the federal government.”