What Can Happen at US Southern Border Post Title 42?

Donald Trump-era Title 42 has become history.

The statute, invoked by the Centers for Disease Control and Prevention (CDC) under the administration of the 45th POTUS after the COVID-19 pandemic had begun its relentless march across the globe in early 2020, came in handy by serving as a tool to deter the influx of asylum seekers on the country’s southern border. The policy endowed US Immigration and Customs Enforcement (ICE) with the authority to immediately deny entry to undocumented migrants as part of an effort to mitigate the spread of the coronavirus. After taking over the White House, the Biden administration continued to rely on Title 42 expulsions as a method of border control. When the CDC officially rescinded the policy in April 2022 as "no longer necessary," after a bout of legal wrangling over lawsuits lodged by some Republican states, the White House finally allowed Title 42 to expire on May 11.

There was a torrent of warnings as to what would follow once the measure ended, with dire forecasts made by a spate of Republican governors, while Texas border cities declared a state of emergency, bracing for a tsunami of illegal immigration.

Meanwhile, there are a number of possible immediate scenarios that might unfold on the US-Mexico border post Title 42.

The discarded Title 42 – used in relation to migrants seeking asylum with Border Patrol, as well as illegals trying to dodge the border agents – allowed for quick returns without repercussions. Migrants were often picked up by Border Patrol, processed, and expelled within hours with no penalty. In fact, that is why multiple crossings by migrants surged after the measure first started to operate in May 2020. But now migrants illegally entering the country will face “more severe” consequences due to a return to a section of US code known as Title 8.

“Stiff consequences for irregular migration,” said US Homeland Security Secretary Alejandro Mayorkas, would include a five-year and 10-year bars on reentry for those deported, along with potential criminal charges for people caught repeatedly trying to enter the United States.

Although there have been apprehensions of a significant surge in crossings and asylum claims, at least in the short term, some officials told media reports that the threat of harsher penalties for those who try to cross illegally under Title 8 may eventually bring the number of crossings down.

According to Mayorkas, apprehension under Title 8 authority may mean “expedited removal,” which allows the Department of Homeland Security (DHS) to "quickly repatriate individuals who do not have a legal basis to stay in the United States."

Title 8 is linked with a lengthier administrative process. If under Title 42 it often took around 30 minutes to process arrivals, under Title 8 the red tape may take over an hour, reports claim. The process involves what is referred to as a credible-fear screening by asylum officers. After that, a migrant's case goes on to the immigration court system. Accordingly, crowding could be expected at holding facilities for migrants.

The old policy of handling border crossings - Title 8 - also allows more time for migrants to lodge asylum claims than under the health emergency measure. However, to deal with this, the Biden administration is staking on several measures, such as asylum seekers being interviewed by phone within hours of finding themselves in Border Patrol custody. The arrivals are offered a chance to avail themselves of pro bono attorneys. Another "lawful pathway" touted by the government is "expanded access to the CBPOne App at a US Port of Entry." However, critics have reportedly slammed the "glitchy" app.

Once migrants are denied asylum, many of them are swiftly deported back to their home countries, at times within hours, according to cited immigration lawyers.

Furthermore, in line with a new asylum rule - already branded a "transit ban" by critics - proposed earlier in the year, migrants who pass through another country, such as Mexico, to seek asylum in the US would be largely banned from doing so. However, arrivals who use the CBP One app would be exempt, according to officials. Critics have likened it to the much-denounced Trump-era third-country asylum rule, but Alejandro Mayorkas dismissed the comparison. The 46th president "expanded lawful pathways" for migrants to enter the US, he insisted, claiming that smugglers would be cut out of the migration process.

Furthermore, ahead of the end of Title 42, the White House announced that Mexico had agreed to take back migrants from Cuba, Haiti, Nicaragua, and Venezuela across the border.

It ought to be mentioned that while Title 42 was in place, Title 8 also continued to be used. Over 1.15 million people were apprehended at the southern border under Title 8 in fiscal year 2022, according to US Customs and Border Protection. Now, with Title 42 consigned to the dustbin of border history, over 10,000 migrants could cross the border daily, top CBP official Troy Miller warned Congress.

To tackle the challenge, the Biden administration has sent an additional 1,500 active-duty troops to the US-Mexico border.