Title 42: What will happen at the border now that the order is about to expire?

As of this Thursday 11 May 2023, the US-Mexico border closes a chapter and enters a new era: a rule imposed by the Donald Trump administration that allowed emergency deportations under the guise of the pandemic, ‘Title 42’, comes to an end.

This week marks the end of the asylum restrictions imposed by the coronavirus pandemic, which have allowed the US to quickly remove migrants at the southern border for the past three years.

This deportation policy is commonly known as ‘Title 42’, because the power is granted from a 1944 public health law that allows migration to be limited in order to protect public health.

The end of the use of Title 42 has raised questions about what will happen to migration at the US-Mexico border. Joe Biden‘s administration is preparing for an increase in the number of migrants.

What is Title 42 and how did it start?

Title 42 is a healthcare rule, imposed during Donald Trump’s term in office, that allows for the emergency deportation of migrants at the border.

The US Centers for Disease Control and Prevention (CDC) issued an order in March 2020 limiting migration, stating that it was necessary to reduce the spread of COVID-19.

Schools and businesses were closing their doors and hospitals were filling up with patients. President Trump was looking for ways to restrict immigration, which was his political priority.

The order authorized Customs and Border Protection (CBP) to immediately remove migrants, including asylum seekers. The measure noted that the areas where migrants were commonly held were not intended to hold people in quarantine or implement social distancing.

Initially, the Biden administration continued the measure. While many Democrats pressured the president to reverse it, some others had spoken out in favor of keeping it – particularly in border states – arguing that the US is not prepared for a surge of asylum seekers.

Since its implementation, Title 42 has been used more than 2.8 million times to remove migrants. However, children travelling unaccompanied by an adult were exempted. In addition, it has also been applied unevenly according to the nationality of migrants, in part because it is more difficult to remove people from certain countries, such as Venezuela and Cuba.

Why is the ‘Title 42’ deportation policy ending?

The federal government announced in January that it would end pandemic-related national emergencies. That also meant ending the use of Title 42 to deal with immigration. Thursday is the last day Title 42 is scheduled to be used.

This is not the first time its use is close to expiring. The CDC announced in April 2022 that the measure was no longer needed because of increased access to vaccines and treatments. Republican-leaning states sued to keep the order in place.

While Title 42 looks likely to expire this week, it is always possible that a last-minute legal challenge could be filed to keep it in place.

So what’s next for migrants?

Starting Friday, asylum seekers will be interviewed by immigration agents. Those determined to have a “credible fear” of persecution in their home countries may remain in the US until a final determination is made.

That could take years. While some people are detained while their asylum process is underway, the vast majority are released on US soil and receive notices to appear in immigration court or to report to immigration authorities.

The level of border crossings is expected to increase when Title 42 is terminated and will have other consequences. Border officials will resort to the usual laws to handle illegal border crossings, which takes longer, in part, because it allows migrants to apply for asylum. This will result in migrants staying longer in detention facilities.

A key concern is that migrants may feel they now have a greater chance of obtaining asylum in the US, so many more will try to enter the country and strain the authorities’ capacity to care for and process them. This could take CBP agents away from their other responsibilities, such as searching for smugglers and facilitating cross-border trade of billions of dollars in goods.

What are the consequences of the new reality at the border?

Migration and human rights experts have harshly criticized the measures taken by the Democratic administration, claiming that they are a continuation of Trump’s policies and warning that they will expose migrants to even more risky situations.

The new policies “will boost human trafficking, enrich the cartels” and cause even more deaths at the border, as people will be forced to head for “more dangerous border crossings”, Ari Sawyer, who researches the border for the organization Human Rights Watch (HRW), told EFE.

The measures will also “result in a violation of the US’s legal obligation not to return refugees to situations of persecution or torture”, he said