As the end of the COVID-19 pandemic draws near, school districts prepare to welcome back students displaced by the policy. But the end of Title 42, which allowed for quick expulsions during the pandemic, does not mean migrants can easily apply for asylum.
The government will likely return to enforcing ordinary immigration law, known as Title 8, once the emergency ends. But it may face legal challenges.
What will happen next?
The end of Covid-19 and the revocation of the public health order officials invoked to turn back migrants at the border will likely send people streaming north. But the migration isn’t expected to surge to ten-year highs, as it did during Title 42.
What is Title 42? Title 42 is a policy that relied on the U.S. Code section that permits the director of the Centers for Disease Control to use the statute, allowing officials to remove migrants they encountered at land ports of entry swiftly. Government officials have ejected people from the country roughly 2.8 million times since the outbreak began.
Research shows that Title 42 has been primarily used to expel single adults from Mexico and the Northern Triangle. The end of the rule means these groups will be subject to heightened immigration processing in the U.S. That may make them more likely to apply for asylum and be approved by immigration courts.
What are the implications for the U.S.-Mexico border?
When the COVID national emergency ends on Thursday, border officers will return to standard immigration law, called Title 8. That means migrants who express fear of returning to their home countries may request asylum. Migrants who try to cross illegally without requesting asylum will be subject to felony charges, imprisonment, and longer bans on re-entering the U.S.
When Title 42 was in effect, the Trump administration returned migrants to Mexico more than 130,000 times (counting months when Mexico accepted them). But that policy hardly deterred migration. Border patrol apprehensions of migrants topped ten-year highs during Title 42.
Communities along the border are bracing for a significant increase in migrant arrivals. The founder of a non-profit migrant shelter in Brownsville, Texas, says his group is receiving about 1,000 migrants a day now and expects the number to rise. Activists warn that many migrants will be heading toward democratic-run cities and states, where they could face abuse.
What are the legal options for migrants?
Many media reports predict a massive migration surge once Title 42 expires and the government begins processing asylum seekers under the long-established protocols. But the government’s new rules, based on a version of a Trump administration policy overturned by the courts, would likely limit protection claims to those who first sought it in the country they traveled through or applied online. It would exclude thousands of migrants, especially single adults, who will be turned away from the U.S. border, leaving them vulnerable to exploitation and violence.
Even when the COVID-19 restrictions are lifted, the border patrol will continue to expel migrants back to Mexico without giving them a preliminary interview or a chance to argue their case before an immigration judge. But that doesn’t mean that the dramatic spike in migration seen over the last few days will continue because migrants will still have various legal options once Title 42 ends.
What are the government’s plans?
The end of Title 42 means that migrants will be subject to decades-old immigration protocols when they try to enter the United States at ports of entry. They will undergo a credible fear interview and be put into detention if they are found to have a legal asylum claim. Those who do not will be returned to Mexico.
The government’s ability to expel migrants quickly will depend on how many migrants Mexico is willing to take and the number of asylum-seekers who evade border patrol agents and turn themselves in to seek protection. Homeland Security Secretary Alejandro Mayorkas said last week that the department would follow “standard procedure,” which includes placing migrants into removal proceedings if deemed inadmissible to the United States.
The coronavirus restrictions, known as Title 42 because it invokes a 1944 public health law, allowed the Trump administration to curb migration by arguing that limiting the spread of contagious disease was necessary. However, it is widely seen as a pretext for cracking down on asylum, a legal right under both U.S. and international law.
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