This week, the pandemic-era health order, known more commonly as Title 42, is set to expire, which will have widespread impact on immigration into the United States. For the last couple of years, the provision has been utilized to swiftly expel individuals entering the United States unlawfully.

Now, the Department of Homeland Security and lawmakers alike are preparing to address an unprecedented level of individuals crossing the Southern border.

What Is Title 42?

On March 20^th, 2020, at the outset of the COVID-19 pandemic, former President Trump previewed a measure which was aimed to curb "mass uncontrolled cross-border movement." The policy ultimately restricted migration into the United States even more than previous border policies under the Trump administration. To enact such a policy, Director for Disease Control and Prevention (“CDC”), Robert Redfield, invoked a World War II-era public health law that authorizes immigration officials to deport migrants from the country. The law, which appears in Title 42 of the U.S. Code, granted the government the "power to prohibit, in whole or in part, the introduction of persons and property" to stop a contagious disease from spreading in the country.

Although the initial order was enacted for only thirty days, it was extended indefinitely in May of 2020. The new policy was quickly met with backlash from senior government officials who claimed that the order was unnecessary to contain the spread of COVID-19.  The policy has been used to deport over one million individuals since it was enacted.

How Does Title 42 Work?

In practice, the effect of Title 42 was significant. It allows border agents to skip many steps typically required for processing individuals who enter the United States. Specifically, it allowed border officials to skip the step that requires them to ask individuals about their fear of return to their home country – a necessary aspect of seeking asylum in the United States. While processing an individual at the border tends to take as long as one hour under standard laws and regulations, the process under Title 42 can take as little as ten minutes.

Under President Biden, the policy of expelling many migrants under Title 42 continued, becoming one of the most effective tools to efficiently monitor the overburdened Southern border.  However, with the end of the COVID-19 health emergency, Title 42 is set to expire this week, leading to significant questions about how the Biden administration will manage the Southern border.

Consequences of the Expiration of Title 42

The expiration of Title 42 at the southern border could potentially lead to significant changes in how unauthorized individuals are processed and dealt with by US Customs and Border Protection (“CBP”). As the public health order expires, CBP may no longer have the authority to swiftly expel individuals without offering them the opportunity to seek asylum or other forms of relief. This could result in a shift towards a more humanitarian approach, where individuals are allowed to present their cases and have their claims for protection assessed through the established immigration processes. It may also mean that there could be an increase in the number of individuals being detained or placed in immigration proceedings while their cases are being reviewed, which could have implications for the capacity and resources needed to handle the influx of migrants at the Southern border. Ultimately, the expiration of Title 42 has the potential to significantly impact the dynamics of immigration enforcement and the treatment of individuals seeking entry into the United States at the southern border.

Lawmakers Respond to Anticipated Surge in Illegal Border Crossings

The expiration of Title 42 has elicited varying responses from lawmakers in the United States. On one hand, some lawmakers, particularly those who advocate for stricter immigration policies, have expressed concerns about the potential consequences of ending the public health order. Texas Governor, Greg Abbott, recently remarked that the expiration of Title 42 “will lead to an incredible amount of people coming across the border illegally.”

On the other hand, many lawmakers and immigration advocates have welcomed the expiration of Title 42, viewing it as an opportunity to restore fairness and due process to the immigration system. They argue that the order was implemented as a mechanism to deny access to protection and asylum, disproportionately impacting vulnerable individuals. These lawmakers emphasize the importance of upholding humanitarian values, ensuring access to legal avenues for those seeking refuge, and treating immigrants with dignity and respect. Among the many lawmakers who have expressed frustration with Title 42 are Senator Bob Menendez of New Jersey and Congresswoman Alexandria Ocasio-Cortez of New York, who recently joined with nearly 80 lawmakers to chastise the Biden administration’s use of Title 42 at the border.

The Biden administration continues to emphasize lawful entry options for individuals seeking entry to the United States. DHS Secretary Alejandro Mayorkas explained that “individuals who access the lawful pathways that we deliver for them will be able to come to the United States in a safe and orderly way.”