The pandemic-era policy used to block migrants at the southern border is coming to an end this week. Lifting so-called Title 42 will mean a major policy shift, one expected to draw an increase of asylum seekers to the U.S. — and scrutiny over how the Biden administration will handle that influx.
Officials have had more than two years to prepare for this moment. But President Joe Biden’s recent decision to send 1,500 active-duty troops to the border struck some immigration policy experts as a sign the administration isn’t ready for the transition. Criticism has poured in from both Republicans and Democrats, yet combating the expected crisis can’t truly be resolved without immigration reform — unlikely in a deadlocked Congress that has failed for decades to address outdated laws.
While the Biden administration braces for what’s to come when the border policy expires on May 11, here’s our effort to bring you up to speed on the latest:
What is Title 42, and how did we get here?
The government has used Title 42 to turn away asylum seekers more than 2 million times for more than three years. But it’s not actually an immigration policy.
Section 265 of Title 42 of U.S. Code addresses public health, social welfare and civil rights. In March 2020, the Trump administration ordered the CDC chief to implement the Title 42 authority and turn people away at the border on public health grounds.
Then-CDC Director Robert Redfield issued the first order on March 20, just days after a national Covid emergency had been declared. Redfield extended the order for another 30 days in April. He renewed it indefinitely in May.
Flash forward to August 2021: The Biden administration — prompting a wave of backlash from immigrant advocates and Democrats — rolled out its own Title 42 order, the one currently in place. But there was a notable change under this order: Now the policy could end in one of two ways — either via the expiration of the HHS public health emergency or the CDC director’s determination that it was no longer necessary, “whichever occurs first.”
The measure has done little to resolve the humanitarian crisis at the southern border, as a growing number of migrants from Central America continue to flee violence, poverty and economic and political instability.
What’s happening now at the border?
Earlier this year, the White House announced it would end the public health emergency on May 11, therefore bringing Title 42 to an end.
Until recently, a series of court challenges, including one that went to the Supreme Court, made the policy’s fate uncertain. But once the Biden administration announced its intent to end the public health emergency, officials began intensely planning around the May 11 date.
May is historically the busiest time of year for migration. The Department of Homeland Security has predicted border agents could see as many as 10,000 crossings a day, and Texas border officials have already issued emergency declarations.
El Paso Mayor Oscar Leeser tried to reassure the public of the area’s safety during a news conference last week, acknowledging the growing number of asylum seekers sheltering in El Paso and surrounding communities.
What is the Biden administration’s plan for immigration?
To deter potential migrants once the order is lifted, the administration will rely on a new rule that will bar most people from applying for asylum if they cross the border illegally or fail to first apply for safe harbor in another country. Administration officials said the rule — a version of a Trump-era policy often called the “transit ban” — would be published Wednesday for public inspection. Migrants who get an appointment through the One app set up by Customs and Border Protection will be exempt, officials told reporters in a call Tuesday evening.
The administration will also expand expedited removal processes under Title 8, the decades-old section of the U.S. code that deals with immigration law. This allows the government to remove from the country anyone unable to establish a legal basis — such as an approved asylum claim. It would bar these migrants from the country for five years.
“The border is not open, it has not been open, and it will not be open subsequent to May 11,” Homeland Security Secretary Alejandro Mayorkas said during a press conference Friday.
Last month, Mayorkas and Secretary of State Antony Blinken also announced plans to establish regional processing centers in Guatemala and Colombia. The timeline for these centers is unclear, though administration officials on Tuesday said they plan to stand up more than 100 facilities throughout the Western Hemisphere. The administration will launch an online platform in the coming days for migrants to make appointments at a processing center near them.
U.S. international partners, including the U.N. High Commissioner for Refugees and the International Organization for Migration, will screen migrants at these centers and determine if they qualify for entry before the migrants move on to the U.S. southern border. If eligible, migrants will be referred for refugee resettlement or other lawful pathways such as humanitarian parole programs, family reunification or existing labor pathways. Migrants will also receive local information about host countries and available social services.
Officials also announced the expansion of the family reunification parole program to include Guatemala, El Salvador, Honduras and Colombia, a program previously only available to Cubans and Haitians. They are also increasing the number of applications available on the CBP One app for migrants in Central and Northern Mexico.
The efforts to expand legal pathways and expedite processing will be paired with deterrence measures — in an effort to build upon the humanitarian parole program for Cubans, Haitians, Nicaraguans and Venezuelans, which officials tout as a success story in bringing border numbers down. The program for these groups will continue, officials said, including the expulsion to Mexico of those who try to enter the U.S. unlawfully.
The administration is also reprogramming existing DHS funding to manage the border. CBP has opened up two additional holding facilities, and Immigration and Customs Enforcement is increasing deportation flights, an official said Tuesday. DHS is also poised to deploy up to 1,000 asylum officers to manage credible fear interviews starting Thursday. The department has also deployed hundreds of personnel from other agencies, and officials said they have 400 volunteers on deck to help “manage what will be challenging conditions in some of our facilities.”
But just on Sunday, Mayorkas continued to raise alarms about the lack of resources.
“I just want to be clear that we are working within significant constraints,” Mayorkas said Sunday on “Meet the Press.” “We need people, we need technology, we need facilities, we need transportation resources, all of the elements of addressing the needs of a large population of people arriving irregularly at our southern border.”
Why are troops being sent to the border?
The Pentagon announced last week that about 1,500 members of the military will be sent to the border, starting this week. They’ll join roughly 2,500 National Guardsmen already deployed there.
DHS requested the deployment, and the troops — mostly soldiers, Marines and a small number of airmen — will focus on administrative functions to free up Border Patrol agents to handle the influx.
The troops won’t be allowed to fulfill any law enforcement roles and won’t be in direct contact with migrants. The deployments are expected to last about 90 days.
The Pentagon’s move continues the trend of presidents — going back to the George W. Bush administration — using troops to fill in for the personnel-strapped Border Patrol.
Still, Democratic Sen. Bob Menendez, chair of the Senate Foreign Relations Committee, criticized the move, calling it “unacceptable” and “the militarization of the border.”
“There is already a humanitarian crisis in the Western Hemisphere, and deploying military personnel only signals that migrants are a threat that require our nation’s troops to contain,” the New Jersey senator said in a statement last week. “Nothing could be further from the truth.”
What comes next?
Just how bad things could get — and for how long — is unknown. The White House has been anxiously awaiting May 11, but some administration officials expect border crossings to settle down in the coming weeks once the new policies are fully up and running.
House Republicans are expected to pass a hardline immigration bill, H.R. 2 (118), as early as Thursday that would codify Trump-era immigration policies. Among them, the much-maligned “Remain in Mexico” policy that required many asylum seekers to stay in Mexico while awaiting U.S. hearings on their requests for safe haven.
The Democratic-controlled Senate is unlikely to take up the bill. But Sens. Kyrsten Sinema (I-Ariz.), Thom Tillis (R-N.C.), Joe Manchin (D-W.Va.) and John Cornyn (R-Texas) have introduced their own legislation, S. 1473 (118), that would extend the Title 42 authority for two years. Their pitch also isn’t expected to move this week.
For now, it seems the next major obstacle would come from the courts. As soon as July, a federal judge in Texas could block the Biden administration’s humanitarian parole program for Cubans, Haitians, Nicaraguans and Venezuelans.
For now, Mexico has agreed to accept 30,000 deportees per month as long as the U.S. continues to accept a reciprocal number of migrants via parole. But if the U.S. can no longer hold up its end of the bargain, the future of the U.S.-Mexico agreement — a key pillar of the Biden administration’s post-Title 42 plan — could be in jeopardy.