Title 42 limits on migration could be ending. What could happen next?
José Ignacio Castañeda PerezOfficials are bracing for an initial influx of thousands of migrants along the U.S.-Mexico border when the Trump-era Title 42 restriction is scheduled to end Dec. 21.
The Department of Homeland Security is estimating that between 9,000 to 14,000 migrants will try to cross the southern border daily when the controversial health policy is lifted, according to CNN.
Border agents could face a workload double or greater, and immigration experts say the move could trigger a sudden surge in asylum-seeking migrants being released by federal immigration authorities in Phoenix and other communities in border states.
Efforts to extend Title 42 restrictions are continuing, including by Sen. Kyrsten Sinema, D-Ariz., making forecasts uncertain for what happens next.
Roughly 44,700 people are on waitlists in 10 Mexican border cities awaiting their opportunity to ask for asylum, according to a November 2022 report from the Robert Strauss Center for International Security and Law at the University of Texas at Austin.
The number of asylum seekers from countries that have long been subject to Title 42 expulsions — including Mexico, El Salvador, Guatemala, Honduras, Haiti and Venezuela — are expected especially to increase, experts say.
Migration flows, however, are projected to level out and stabilize after the initial surge of numbers in the first few months after the restriction’s end.
“There will be at least a short term increase in the number of encounters after December because migrants will think that after Title 42, they will have easier access to get into the United States and seek asylum,” said Ariel Ruiz Soto, policy analyst at the Migration Policy Institute.
Title 42 was first invoked under the Trump administration in March 2020 and has continued to be enforced by the Biden administration as a tool to mitigate flows of migrants along the U.S.-Mexico border. The pandemic-era restriction allows border officials to swiftly expel migrants while closing official ports of entry for asylum seekers.
On Nov. 15, U.S. District Judge Emmet Sullivan in Washington, D.C., vacated the policy and gave the Biden administration five weeks to prepare for the end of the restriction.
The Biden administration on Wednesday appealed Sullivan's order, focusing on the authority of the U.S. Centers for Disease Control and Prevention to issue orders regulating migration. It appeared the government was still planning to meet the Dec. 21 deadline to end use of Title 42.
Title 42 has been used to expel migrants more than 2.4 million times since its implementation and has bottled up tens of thousands of migrants in Mexican border cities who are waiting to request asylum in the U.S.
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Immigration advocates applauded the removal of Title 42 as Arizona’s Democratic senators and Gov.-elect Katie Hobbs criticized the administration’s decision to end the policy with no other viable plan in place.
“Lifting Title 42 with no comprehensive immigration plan to resolve this crisis would be a mistake,” Hobbs said in a written statement. "For decades, Arizona has been on the frontline of the federal government's failure to address the border crisis. As governor, I'll use every tool available to keep our communities safe.”
Migrant shelter directors in cities along the Arizona-Mexico border remain uncertain on what may happen on Dec. 21. Until the restriction is actually lifted, they said they will continue to operate as they have since the policy was established.
The number of migrants Border Patrol agents must process will “likely be double or greater” once Title 42 is lifted, placing further strain on the agency, according to a September U.S. Department of Homeland Security Office of Inspector General report.
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The report found that Border Patrol is “unprepared” to meet the increase in processing and placement burdens, possibly resulting in overcrowding and longer detention times in detention centers.
Once Title 42 is lifted, the Biden Administration plans to fully revert processing of migrants to the Title 8 authority of the Immigration and Nationality Act. Procedures under Title 8 have historically been used to process migrants at the border and were standard practice before the pandemic.
“Unwinding (Title 42) is really just returning to normal processing under the law,” said Chelsea Sachau, managing attorney of the Border Action Team at the Florence Immigrant and Refugee Rights Project.
“It's just the government doing what it was doing for years before the pandemic occurred.”
Under Title 8, migrants are processed and either can be removed from the country, placed in immigration detention or released with a notice to appear in immigration court later. Migrants processed under Title 8 must then confront the U.S.’s congested immigration courts with a 1.9 million case backlog, according to Syracuse University's Transaction Records Access Clearinghouse.
If migrants are deemed inadmissible at a port of entry or are apprehended between ports of entry, they are subject to expedited removal under Title 8. Border officials have used both Title 8 and Title 42 to process migrants since the border restriction was enacted in 2020.
The Biden Administration is considering various measures to enact once Title 42 is lifted later this month, according to Axios. One proposal includes a surge in criminal prosecutions for single adults who have done nothing but illegally cross the border, focusing on people who evade Border Patrol.
“I don't think Title 42 was a solution to migration encounters, and I don't think taking it away is going to change things dramatically,” Ruiz Soto said. “The new processes are going to be what define the future of these flows.”
The U.S. Department of Homeland Security did not respond to requests for comment.
U.S. Sens. Kyrsten Sinema and Mark Kelly have long called for Title 42 to remain in place until the federal government had a comprehensive, workable plan in place. In April, the Arizona Democrats helped introduce legislation that would require the Biden administration to have a comprehensive plan in place before rescinding Title 42.
What is Title 42? How does it work?
Title 42 is a rarely used section of the U.S. Code dating back to 1944 that relates to public health and welfare. Under section 265 of the code, the director of the Centers for Disease Control and Prevention is allowed to prohibit the entry of non-citizens into the country if they believe there’s a “serious danger” of the introduction of the communicable disease into the U.S.
Part of the reasoning for invoking Title 42 was to mitigate the spread of COVID-19 in immigration facilities at the onset of the pandemic.
For nearly three years, the policy has been used to rapidly expel migrants and asylum seekers to Mexico or their home countries. Only migrants from Mexico, Venezuela and the Northern Triangle countries of Guatemala, Honduras and El Salvador can be returned to Mexico under Title 42.
With official ports of entry closed to asylum seekers, many migrants have resorted to requesting asylum between ports of entry, often taking more remote and dangerous routes. Hundreds of migrants present themselves to Border Patrol agents daily along the Cocopah Reservation near Yuma, waiting hours to be processed as the agency is strained with increased demand.
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In the Tucson sector, which covers 262 miles between New Mexico and Yuma County, about 65% of encounters ended with a Title 42 expulsion thus far in fiscal year 2023, per U.S. Customs and Border Protection data.
In the Yuma Sector only about 6% of encounters ended with a Title 42 expulsion, which is largely due to the nationality of the migrants apprehended.
Migrants have decried Title 42 as it has impeded their ability to seek asylum in the U.S. while they’re fleeing violence, threats and economic instability in their home countries. Advocates have criticized the policy that has forced asylum seekers to wait in Mexican border communities for months, facing discrimination and dangerous conditions.
Since January 2021, Human Rights First has documented at least 10,318 reports of “kidnapping, murder, torture, rape, and other violent attacks” against migrants expelled to Mexico under Title 42.
In May, President Biden tried to rescind the health policy but a federal judge in Louisiana subsequently blocked the administration’s efforts, leaving the policy in place indefinitely. The judge’s decision stemmed from a lawsuit filed by Arizona Attorney General Mark Brnovich, along with 20 other Republican attorneys general.
When the policy was slated to be lifted in May, the DHS was planning for a scenario, which was the most drastic, that projected 18,000 encounters a day with migrants along the southwestern border.
In October, the Biden administration expanded the scope of Title 42 to include Venezuelan migrants, a population that had been exempt from the restriction. The announcement included plans for a humanitarian program that would allow up to 24,000 Venezuelans into the country, given they have a supporting sponsor in the U.S. and after completing a rigorous application process.
After Judge Sullivan’s decision to vacate Title 42, Arizona, alongside 14 other states, filed a motion in federal court seeking to prevent the end of the restriction.
Concerns, applause before termination
Immigration advocates have celebrated the decision to lift Title 42 as Arizona’s senators have voiced concerns over its scheduled end. In November, Sinema and Kelly sent a letter to Homeland Security Secretary Alejandro Mayorkas expressing “deep concerns” about the looming end of Title 42.
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The two Arizona Democrats detailed their worries about the expected influx of migrants being released into communities as well as a projected strain of resources for Border Patrol and NGOs once the restriction is lifted.
“While Title 42 expulsion totals reflect repeat attempts to enter the United States, a sharp end to Title 42 would nonetheless significantly increase the number of migrants apprehended along the Southwest Border under Title 8,” the senators wrote in the letter.
Sinema, alongside Sen. Thom Tillis, R-N.C., reached an agreement on draft framework for immigration reform Monday that would include a continuation of Title 42 restrictions for asylum seekers, according to the Washington Post.
The proposal includes a significant boost in resources to facilitate the processing of asylum seekers with new processing centers, asylum officers and judges. The framework also includes increased resources to expedite the removal of migrants who don’t qualify for asylum and more funding for border officers.
Title 42 would be slated to end after at least one year if the processing centers, which would house migrants, are up and running. The bipartisan compromise also includes a framework for some form of citizenship for 2 million undocumented youth who came to the U.S. as children, known as “Dreamers.”
Mayorkas emphasized that officials will continue to enforce immigration laws and that the border remains closed. In an April memo, Mayorkas said he expects migration levels to increase as smugglers aim to take advantage of and profit from migrants once Title 42 is lifted.
“While the stay is in effect, DHS will continue to process individuals in accordance with the CDC’s Title 42 public health order and expel single adults and family units encountered at the Southwest Border,” Mayorkas said in a news release.
Martin Salgado, director of the migrant aid shelter Casa del Migrante la Divina Providencia, said he is largely unworried about the end of the policy. The shelter, which is located in San Luis Río Colorado, Sonora, operated fine with the same volume of migrants before Title 42 was invoked and before the pandemic, he said.
Similarly, migrants haven’t expressed worries to him about the border restriction or its termination.
“In general, the thing that worries migrants here the least is Title 42,” Salgado said. “People say, ‘I’m going to try to cross with or without Title 42.’”
Joanna Williams, executive director of the Kino Border Initiative in Nogales, Sonora, one of the busiest hubs for migrants waiting to request asylum along the Arizona-Mexico border, celebrated the decision to end Title 42. The KBI migrant shelter has housed numerous asylum seekers fleeing organized crime and danger who are forced to wait in the border community under Title 42.
“We are confident that we can come together as communities and a society to provide welcome and a just process for people who have been stranded at the border by Title 42 and we look forward to the opportunity to continue to stretch our capacity to love our neighbors,” Williams said in a written news release.
Sachau, the managing attorney with the Florence Project, similarly welcomed the decision to lift Title 42 but acknowledged that the policy will take time to unwind. Sachau described the decision as a “welcome change” but stressed that the organization will be needed more than ever to help orient asylum seekers of their rights.
What is the administration planning to do?
It is still unclear what the Biden Administration plans to do when Title 42 is terminated on Dec. 21.
A report from Axios revealed that the administration is considering numerous approaches to dealing with a post-Title 42 reality, including placing single adults who have not first applied for protection in countries they’re traveling through in expedited removal.
Expedited removal is a process that allows border officials to more quickly expel migrants without a formal court hearing, unless they express credible fear of returning to their home countries. This potential approach mirrors former President Donald Trump’s “transit ban” that denied asylum to migrants who hadn’t first sought protection in other countries along their journey.
The administration is also considering the expansion of a humanitarian program, implemented when Title 42 was expanded to include Venezuelans, that allowed up to 24,000 Venezuelans into the country.
Administration officials are considering raising the 24,000-person cap and expanding the initiative to Nicaraguans who the U.S. has difficulty returning to their home country. Additionally, the administration is considering using an app, owned and managed by CBP, that allows migrants to schedule a meeting at a point of entry ahead of time, according to Axios.
When Title 42 was set to be lifted in May, DHS issued its “six pillars” plan to implement once the restriction was terminated.
The plan focused on: surging resources and personnel to the border; increasing processing speeds at ports of entry and Border Patrol stations; and implementing long-term consequences for unlawful entry, including removal, prosecution and detention.
As far as the appeal of Sullivan's order, the Biden administration intends to ask the D.C. Circuit Court to pause the appeal until a decision is made in a separate case challenging the end of Title 42, according to the notice of appeal. In May, U.S. District Judge Robert Summerhays of Louisiana blocked the administration’s plans to lift the health order after a lawsuit from a coalition of Republican-led states.
The Justice Department appealed the decision.
“The government respectfully disagrees with this Court’s decision and would argue on appeal, as it has argued in this Court, that CDC’s Title 42 Orders were lawful,” Justice Department lawyers wrote in the notice filed Wednesday.
The U.S. Department of Health and Human Services and the CDC are also planning on going through a notice-and-comment period to issue a new set of rules to regulate how the agency responds to public health emergencies in the future.
Have a news tip or story idea about the border and its communities? Contact the reporter at jcastaneda1@arizonarepublic.com or connect with him on Twitter @joseicastaneda.