How Title 42’s expiration will reshape U.S. border policy

The termination of an emergency immigration restriction known as Title 42 will mark a major policy shift in how the U.S. processes migrants who reach the southern border, including those hoping to ask for asylum.

For over three years, since the outset of the COVID-19 pandemic, U.S. border officials under Presidents Donald Trump and Joe Biden have cited Title 42 to expel hundreds of thousands of migrants to Mexico or their home countries on the grounds that their entry could contribute to the spread of the coronavirus.

While officially a public health measure, Title 42 has been used as a tool to manage and deter illegal border crossings, especially under the Biden administration, which has faced an unprecedented migration wave fueled in part by mass exoduses from crisis-stricken countries like Cuba, Nicaragua and Venezuela.

Progressive Democrats and advocates have condemned Title 42 because it blocks migrants from requesting asylum, a legal right they normally have if they reach U.S. soil. Republicans have portrayed it as an effective border control tool, proposing to codify Title 42 into law so it can be used outside of the pandemic context.

Because it has relied on the rule for over three years, the U.S. expects to see a sharp increase in migrant arrivals once Title 42 ends. To preempt the potentially historic spike in border crossings, the Biden administration has unveiled a web of policies that pair measures to deter migration, such as a restriction on asylum, with expanded opportunities for migrants to enter the U.S. legally.

When is Title 42 ending, and why?

Title 42 is set to end on May 11, absent any last-minute development, because the national COVID-19 public health emergency is expiring, eliminating one of the legal underpinnings of the policy.

Since it was enacted by the Trump administration in March 2020, Title 42 has allowed the U.S. to expel migrants over 2.7 million times from the southern border, according to official government figures.

Up until the spring of 2022, the U.S. government argued that Title 42 was needed to contain the coronavirus, contradicting public health experts. But in April 2022, the Centers for Disease Control and Prevention said there was no public health basis to continue expelling migrants and announced it would phase out Title 42.

Title 42 remained in place due to an order from a federal judge in Louisiana who agreed to a request from Republican-led states to block the policy’s termination on technical grounds. The expulsions were again set to end in December 2022 after another federal judge declared the rule illegal. But his ruling was later paused by the U.S. Supreme Court, again at the request of Republican-led states.

What will happen after Title 42?

U.S. officials have said they expect the level of border crossings to rise when Title 42 sunsets, citing the tens of thousands migrants waiting in Mexico and the rapid dissemination of information about U.S. policy changes by smugglers.

Troy Miller, the top official at U.S. Customs and Border Protection (CBP), recently told Congress that his agency is preparing for as many as 10,000 migrants to cross the southern border each day after Title 42 ends, which would almost double the daily average in March. Other internal government projections suggest that daily migrant arrivals could rise to between 11,000 and 13,000, absent a major policy change.

Is the government prepared?

In January, the Biden administration rolled out its first comprehensive border strategy, expanding Title 42 to expel Cubans, Haitians, Nicaraguans and Venezuelans to Mexico if they entered the U.S. unlawfully, while allowing up to 30,000 migrants from those countries to fly to the U.S. per month under a sponsorship program. It also started allowing asylum-seekers in Mexico to secure appointments to enter the country via a phone app.

The administration plans to continue these policies, which led to a sharp drop in border arrivals among the affected nationalities, after Title 42 ends. It will also increase the number of appointments distributed by the phone app, so more asylum-seekers can enter the U.S. at ports of entry along the southern border.

More recently, the administration announced it would set up processing centers in Latin America, starting in Colombia and Guatemala, to vet migrants for eligibility to be resettled in those countries, the U.S., Canada or Spain. It also said it would allow some citizens of Colombia, Guatemala, Honduras and El Salvador to fly to the U.S. under a program for those with approved visa requests from relatives who are U.S. citizens or residents.

But the administration has also said it will increase regular deportations, including through a process known as expedited removal under which migrants can be quickly deported and banished from the U.S. for five years. The increase in deportations is expected to work in conjunction with a new regulation that will disqualify migrants from asylum if they failed to seek refuge in a third country before crossing into the U.S. illegally. 

On May 2, the Department of Defense announced the deployment of another 1,500 active-duty troops to the U.S.-Mexico border to relieve some of the pressure on Border Patrol agents by helping them with administrative and operational tasks, such as transportation and data-entry.

Despite the administration’s moves, border communities have voiced concerns about their ability to absorb large numbers of migrants, with several cities in Texas recently issuing emergency declarations. Border crossings have also already increased sharply in the lead-up to Title 42’s expiration, overwhelming Border Patrol holding facilities and prompting the agency to release hundreds of migrants in cities like El Paso, Texas.

While a migration spike is likely, the end of Title 42 will not completely alter current border policy, since most migrants have not been processed under the pandemic rule in recent months. Still, once Title 42 lifts, the U.S. will need to process all migrants who reach American soil under regular immigration law, known as Title 8.

What is Title 8 and how does it differ from Title 42?

Under Title 8, the section of the U.S. code containing all immigration laws, the U.S. is required to give migrants who request asylum a preliminary interview or a chance to present their case in front of an immigration judge.

That doesn’t mean the U.S. won’t deport migrants post-Title 42. Those who don’t claim asylum or who fail preliminary interviews with asylum officers could be deported under the expedited removal process to their home country or Mexico, which has pledged to continue accepting some non-Mexican deportees.

In fact, the administration has been working to speed up these interviews by keeping migrants in Border Patrol custody until asylum officers determine whether they should be deported. Through the new rule, it is also making the interviews more difficult to pass for non-Mexican migrants who didn’t seek asylum elsewhere.

Because of diplomatic reasons and operational constraints, such as insufficient detention capacity and deportation flights, not all migrants will be processed under expedited removal. Some migrants will be given a notice to appear in court, and either released into the U.S. or sent to long-term detention centers.

While some adults could be detained, families with children not processed under expedited removal are expected to be released, since officials have ruled out restarting family detention. Title 42’s end will not alter the processing of unaccompanied minors, as the policy has not applied to them since late 2020. These children are housed in federal shelters and allowed to stay in the U.S. while their immigration cases are reviewed.

Migrants given court notices will get an opportunity to seek asylum in front of an immigration judge. But because the immigration court system is dealing with a backlog of hundreds of thousands of unsolved cases, their claims are not likely to be adjudicated for years.