Explainer: Looming repeal of Title 42 raises concerns about migrants at Mexico border

Here is a look at what Title 42 does and the uncertainty surrounded its repeal from Democrats and Republicans.

What Title 42 allows

Title 42 is a provision of the Public Health Service Act enacted in 1944 that allows the federal government to bar entry to or immediately expel anyone from a foreign country who could introduce a disease into the U.S. population.

The Centers for Disease Control and Prevention — under former President Donald Trump — invoked Title 42 in March 2020 to authorize the rapid expulsion of illegal border crossers and asylum seekers to limit the spread of COVID-19.

Under Biden, the CDC lifted the use of Title 42 as it applies to unaccompanied minors who arrive at the border in March. The government also issued exemptions to Ukrainians fleeing the Russian invasion, but the announcement of a new immigration program for Ukrainian refugees means the exemption will end Monday.

Under Title 42, migrants are expelled rather than deported and they’re not allowed to appear before an immigration judge to make their case. They’re usually returned to Mexico within minutes or hours.

The numbers

That first month, the United States expelled more than 7,000 people under Title 42, but that figure ballooned to a height of more than 112,000 in both April and May 2021. The most recent month for which there are data, January, saw nearly 80,000 expulsions.

The figures are likely complicated by repeated attempts to cross the border by the same people, Democratic gubernatorial candidate Beto O’Rourke told The Texas Tribune earlier this month. As a former U.S. congressman, he represented the border city of El Paso, Texas.

“What [Title 42] has done is produced a situation where the same person is crossing multiple times a week, and under Title 42 that Border Patrol agent simply turns that person back around and then that person tries to cross the next day,” he said.

Because there are no consequences for migrants who are expelled when trying to cross the border illegally, they simply try again, O’Rourke added, putting strain on the border and giving ammunition to Republicans warning that migrants will flood the border after Title 42 is lifted.

According to an American Immigration Council analysis of U.S. Customs and Border Protection figures, while border apprehensions increased to more than 1.4 million in fiscal year 2021 — up from roughly 400,000 in 2020 and 800,000 in 2019 — the recidivism rate has soared from about 7% to more than 30% in the same time period. The number of border apprehensions was nearly twice as high in 2021 as 2019, but the number of unique people apprehended was up by 24%.

Lawmakers’ concerns

O’Rourke, like many Democrats, has called for a repeal of Title 42 since Trump enacted it, but in recent weeks he’s grown concerned with the Biden administration’s plans for when it’s lifted.

“Everyone is legitimately concerned about the lack of a plan,” he said.

More Democrats in Congress have sided with Republicans who have opposed lifting Title 42.

Sen. Gary Peters, D-Mich., told reporters Monday that he spoke with Homeland Security Secretary Alejandro Mayorkas and other administration officials about his concerns.

“Unless we have a well-thought-out plan, I think it is something that should be revisited and perhaps delayed,” he said of Biden’s plan to lift Title 42 on May 23.

“I’m going to defer judgment on that until I give the administration the opportunity to fully articulate what that plan is. But I share … concerns of some of my colleagues.”

Sen. Ted Cruz, R-Texas, meanwhile, was more sure of his stance, sending a letter to Biden last month calling on him to allow border officials to “expeditiously expel illegal immigrants” and warning that lifting Title 42 will “lead to a massive influx of more than 170,000 illegal immigrants” at the border.

“As you may know, there is currently a crisis occurring at the southern border,” he wrote. “In Texas, South Texas border communities Del Rio and McAllen are already suffering and are running low on resources from dealing with a massive influx of illegal immigrants. These communities cannot further be burdened by a mass influx of illegal immigrants, due to the ending of Title 42.

“As president of the United States, you have the ability to ensure the renewal of this critical policy that has protected Americans from the further spread of COVID-19.”

Human toll

Human rights and immigration rights advocacy groups say Cruz and other Republicans’ support for Title 42 has more to do with preventing immigration to the United States and less with the pandemic. Republicans have long been in favor of tighter immigration laws and Trump famously sought to force Mexico to pay for a wall along the southern border.

The Trump administration implemented Title 42 over the objections of many health officials who have said there’s been no scientific evidence to show that limiting migration has slowed the spread of COVID-19.

A letter to Biden from top epidemiologists and public health experts called on him to lift Title 42 at the beginning of his term.

“We are profoundly disappointed that the Biden administration continues to disregard science in favor of a cruel and discriminatory policy that does nothing to safeguard public health,” Dr. Michele Heisler, medical director of Physicians for Human Rights, said in a statement.

A lawsuit by the American Civil Liberties Union said the immediate expulsions of migrants along the border — some in an unfamiliar country — have left people vulnerable.

In one court document, Savitri Arvey, a migration policy adviser for the Women’s Refugee Commission, said nearly 1 in 5 of the asylum seekers she’s worked with said they were kidnapped in Mexico, many of them raped. She detailed the abduction and rape of a Honduran woman shortly after border officials expelled her and her daughter at night. The woman’s daughter ended up crossing the border again on her own and when the woman escaped her captors, they were reunited.

Those who aren’t abducted, meanwhile, face squalid conditions at the Mexican border, she said in her statement.

“In Piedras Negras, for example, the municipal government has prevented migrant shelters from reopening at even a limited capacity due to COVID-19. As a result, many have been forced to sleep in abandoned houses, in the bus terminal, under bridges or on the street, leaving them more vulnerable to the extreme elements and abuse from exploitative actors,” Arvey said. “In these conditions, families with young children have struggled to access the most basic necessities, such as food and water, and suffered from inadequate sanitary conditions.”

The Kino Border Initiative, an immigration advocacy group that provides resources and assistance to migrants, said it welcomed the news that the Biden administration plans to lift Title 42. The group called for immigration officials to immediately begin exempting the most vulnerable families and individuals from Title 42 until it’s officially lifted, citing the threat of kidnappings and other dangers.

The organization said it’s aware “much work lies ahead” with the impending rule change, but “we will continue to work tirelessly until every person seeking protection is able to do so, as is their right under U.S. and international law, and we remain ready, willing and able to embrace this opportunity to collaborate with the administration to ensure that this vision becomes reality.”