The Title 42 public health order, which was implemented at the beginning of the COVID-19 pandemic and has morphed into a central cog of the U.S. response to the ongoing migrant crisis at the southern border, will end in a month’s time -- with the federal government still making moves to deal with a potential surge.
The order was implemented in March 2020 during the Trump administration and at the beginning of the pandemic. The order, from the Centers for Disease Control (CDC), allows border authorities to rapidly expel migrants at the southern border for public health reasons.
Whereas migrants who are encountered entering the U.S. illegally may normally be processed and expelled using Title 8 authorities that can take hours or days to complete, Title 42 meant that migrants could be turned back to Mexico often without even being put into detention.
It soon meant that a majority of migrants were being returned to Mexico under the order, and it has become a central plank of border security in both the Trump and Biden administrations. It has become especially important since 2021 where the border saw an unprecedented surge in migration at the border with over 1.7 million encounters in FY 2021 and over 2.3 million in FY 2022.
Those numbers were exceeded in the first months of FY 2023, but have dipped slightly in recent months, which the Biden administration has put down to border measures unveiled in January that included expanding Title 42 expulsions to include an additional four nationalities.
Some lawmakers, both Republicans and Democrats as well as at least one Republican presidential candidate, have called for Title 42 to be either extended or enshrined into law. Others have noted that it comes with increased recidivism -- with migrants often making multiple attempts at entry -- while the Biden administration has argued it limits authorities from imposing punishments against illegal border crossers.
The administration had attempted to end Title 42 last year, but had been blocked by legal action from Republican states. However, with the end of the public health emergency on May 11, the Biden administration is ending Title 42 as well. There appears to be no significant legal challenge incoming.
With the order now ending, it renews fears of an even bigger surge ahead of the typical Spring and Summer increase the border often sees. When the order was due to end last year, the administration was predicting up to 14,000 migrant encounters a day -- which would come to over 400,000 encounters a month.
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The administration has said it has a plan to deal with any surge, which includes greater cooperation with Mexico, surging resources to the border for processing, working with NGO partners and the increased use of alternative removal authorities under Title 8.
More recently, the administration has been making additional moves indicating it is gearing up for a post-Title 42 rush at the border.
Last month the administration rolled out a new asylum proposed rule, which would immediately bar illegal immigrants who had crossed into the U.S. without claiming asylum at a prior country through which they passed. The rule is going through with the intention of being in place before the order lifts.
While DHS Secretary Alejandro Mayorkas has stressed that the "presumption of ineligibility" will be rebuttable and there are exemptions made for some people, it has enraged some Democrats and immigration activists who claim it is similar to the Trump-era transit ban and that it encroaches on the right of anyone from anywhere in the world to claim asylum at the U.S. border.
Separately, Fox News Digital reported on Saturday that the administration is preparing to hold "credible fear" screenings – the first step in claiming asylum – for migrants in Customs and Border Protection (CBP) facilities.
DHS confirmed the agency is working with legal service providers "to provide access to legal services for individuals who receive credible fear interviews in CBP custody."
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"This is part of a planning effort underway to initiate a process that would allow migrants to receive credible fear interviews from specially trained U.S. Citizenship and Immigration Services [USCIS] officers while still in [CBP] custody," spokesperson Marsha Espinosa said.
DHS said the process is designed to ensure that migrants have access to legal service providers, and said the efforts would inform best practices if credible fear interviews are expanded.
Towering over these new policies is the CBP One App, which was expanded in January to allow migrants to make appointments at ports of entry. So far it is only being used to allow exemptions to Title 42, but is set to expand once the order drops.
However, that app has faced criticism from left and right, with Republicans calling it a "concierge service" for illegal immigrants and immigration activists claiming that the app is riddled with tech bugs that are stopping migrants from entering the U.S.
How all these factors will fit together will only be seen when the order ends on May 11. In the meantime, multiple CBP offices have been sending out messages to migrants warning that the border is "not open" despite what they may have heard from smugglers.
