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How the U.S. is bracing for the end of Title 42 at the southern border

The emergency public health measure allowing for the expulsion of migrants seeking asylum to the United States, is set to expire Thursday, more than three years after it was put in place.

Title 42, an emergency public health measure allowing for the expulsion of migrants seeking asylum to the United States, is set to expire at 11:59 p.m. ET on Thursday, more than three years after it was put in place by the Trump administration at the start of the COVID-19 pandemic.

The Biden administration, which had, for a time, sought to keep the policy in place, has been bracing for a surge in migrants in response to the change. Over the last three days, an estimated 10,000 migrants have crossed into the country each day, and that number is expected to rise once Title 42 expires.

In the absence of the policy, U.S. border agents will resume processing migrants under a decades-old immigration protocol known as Title 8, which requires that migrants encountered at the border be detained and interviewed to determine whether they have a credible fear of persecution in their home country. Those who meet that standard will be allowed to remain in the U.S. as their case makes its way through the immigration court system. Those who don’t will be deported, subject to a five-year ban on reentering the U.S., and will be subject to criminal prosecution if they attempt to return.

The longer processing times mandated under Title 8, as well as a spike in migrants arriving at the border in recent days, has raised concerns about chaos and overcrowding at ports of entry and detention centers. In an attempt to curb the flow of asylum seekers traveling to the U.S. through Mexico, the Biden administration on Wednesday finalized a new rule, first announced in February, that will make migrants ineligible for asylum at the border if they fail to first apply for an appointment online or seek protection in another country that they traveled through on their way to the U.S.

Here are some aspects about the policy and its expiration, as well as what comes next.

How did Title 42 come into being?

A Central American family lines up to talk to two U.S. Border Patrol agents, with many other migrants seated on the bare ground behind them.
California U.S. Border Patrol agents sort out families from a large group of migrants gathered between the primary and secondary border fences in San Diego on May 11. (Reuters/Mike Blake)

The public health authority, which dates back to 1944, was first invoked in March 2020 with an emergency order from the Centers for Disease Control and Prevention, which described the measure as “necessary to protect the public health from an increase in the serious danger of the introduction of Coronavirus Disease 2019.”

Almost immediately, the Trump administration’s use of Title 42 in this context was condemned by both human rights advocates and many public health experts, who argued that the CDC order was “based on specious justifications and fails to protect public health.”

Why did the Biden administration want to end the policy?

A migrant, surrounded by three small children wearing backpacks and toy flotation devices, holds his arms open wide as he looks at five Texas National Guards behind a fence of razor wire.
A migrant gestures to Texas National Guards standing behind razor wire on the bank of the Rio Grande river, seen from Matamoros, Mexico, on May 11. (Fernando Llano/AP)

The Biden administration initially planned to stop using Title 42 to expel family units of migrants in July 2021, amid pressure from progressive advocates who argued that the policy violated migrants’ right to seek asylum.

But it reversed course in response to an increase of arrivals at the border. The Centers for Disease Control and Prevention then set an expiration date of May 23, 2022, but that was blocked by a federal lawsuit by a group of Republican attorneys general. And in Dec. 2022, the Supreme Court extended Title 42’s life once more, after a group of Republican-led states objected to a federal judge’s order directing the Biden administration to terminate the policy.

Since Title 42 was invoked by the CDC in response to the pandemic, the Biden administration ultimately decided to allow the controversial border restriction to expire along with the federal government’s COVID-19 Public Health Emergency, which will also end late Thursday night.

How many migrants have been turned away from the U.S. under title 42?

A migrant family from Peru, the man carrying a young girl on his shoulders, walk toward a gate in the border fence.
A migrant family from Peru walk toward a gate in the border fence after crossing from Ciudad Juarez, Mexico, into El Paso, Texas, in the early hours of Thursday. (Andres Leighton/AP)

Since its implementation, Title 42 has been used 2.8 million times to turn away migrants at the southern border, according to U.S. Customs and Border Protection Data. In 2022, a total of 1,480,416 individual migrants were encountered by Border Patrol, and of those, 246,045 made at least two or more attempts to cross into the U.S.

Some critics point to these numbers as evidence of how ineffective Title 42 has been at deterring migrants from attempting to cross the southern border. Not only has the number of migrants apprehended along the U.S.-Mexico border reached record levels over the past three years, but the rapid nature of Title 42 expulsions has made it much easier for those sent back to Mexico to make repeated attempts to cross.

What has Title 42 created in Mexico?

Migrants line up to cross the border, as a U.S. Border Patrol agent hands out forms.
Migrants get ready to cross the border at Cocopah Indian Reservation near Yuma, Ariz., on Thursday. (DeeCee Carter/MediaPunch /IPX)

Under Title 42, the number of migrants waiting in Mexican border areas for their U.S. asylum applications to be processed has swelled to between 60,000 and 65,000, according to an estimate given to reporters on Wednesday by Border Patrol Chief Raul Ortiz.

Life in border camps is often not safe.

A December 2022 report published by Human Rights First recorded 13,480 incidents of torture, kidnapping, rape and other violent attacks on people expelled from the U.S. to Mexico under Title 42 since Biden took office.

What’s happening on the U.S. side of the border now?

A sign on a broad street points to Migrant Pick Up, at La Plaza bus station.
A sign indicates where migrants can be picked up at La Plaza bus station in Brownsville, Texas, on May 11. (Evan Garcia/Reuters)

On Tuesday, Department of Homeland Security officials said more than 11,000 migrants had been apprehended along the southern border, a record for single-day arrests.

Customs and Border Patrol officials reported that, as of Wednesday, 26,354 people were in custody. According to ABC News, Border Patrol Chief Raul Ortiz said that number was already "several thousand less" than it had been earlier Wednesday morning. But, as NBC News noted, that figure is also “far higher than the roughly 18,500 the facilities are equipped to hold.”

In light of concerns about overcrowding at border processing facilities, the Biden administration is now reportedly directing CBP to release some migrants into the country on parole with instructions to report to an Immigration and Customs Enforcement office. At a news conference Wednesday, Homeland Security Secretary Alejandro Mayorkas said this new policy would apply to “a fraction of the people that we encounter.”

"In fact, the vast majority will be addressed in our border patrol facilities and our ICE detention facilities," he said.

How is the U.S. preparing for the expected surge of migrants?

Two migrants, wearing only their underpants, and one carrying a black garbage bag, head into the river while two other migrants, one holding a young girl in his arms, point to the other side.
Migrants cross the Rio Grande to the U.S. from Matamoros, Mexico, on Thursday. (Fernando Llano/AP)

Biden announced last week that he was sending 15,000 U.S. troops to the southern border to help stem the flow of migrants. That number is in addition to 2,500 National Guard members already stationed along the border, as well as more than 1,400 DHS personnel and 1,000 processing coordinators who are being deployed in anticipation of a surge in migration following the end of Title 42.

In anticipation of the end of Title 42, Texas border cities like El Paso, Laredo and Brownsville declared a state of emergency, in order to request federal resources to help house and provide transportation for the surge in new arrivals.

Similar steps are also being taken in cities like Chicago and New York, which have also received large numbers of asylum seekers in recent months.