Title 42 has allowed many migrants to be quickly expelled, and others to stay
By Eileen Sullivan
The Biden administration is now under court order to keep in place a Trump-era public health rule that uses the coronavirus pandemic to justify quickly turning back migrants at the border with Mexico.
The Centers for Disease Control and Prevention said in April that there was no longer any public health basis for keeping the rule in place. The administration had planned to lift the rule Monday, but last Friday, a federal judge blocked it from doing so.
From President Joe Biden’s first day in office through the end of April, the administration used the public health rule more than 1.3 million times to turn away migrants at the southern border, representing about 50% of encounters there, according to government data. Border officials encountered nearly 2.7 million migrants along the southern border during that time period. They have allowed about 700,000 to enter the country and try to persuade an immigration judge to let them stay.
The result has been a confusing and chaotic approach to border security. Whether someone is permitted to stay in the United States at least temporarily or is turned back immediately under the public health rule has varied day by day or even hour by hour, as well as from one border crossing to the next.
Immigration and human rights advocates say the rule, known as Title 42, has been used improperly as an enforcement tool, forcing many migrants to return to dangerous situations. They have pressed Biden to lift the rule, which was put in place by the CDC. Some groups, including the American Civil Liberties Union, have sued the government to stop it from using the rule to expel migrant families.
Here are the reasons that many migrants have been allowed to stay in the United States, despite Title 42.
Unaccompanied migrant children are allowed into the U.S.
During his first news conference as president, at the beginning of a sharp surge in illegal border crossings, Biden said, “The only people we’re not going to let sitting there, on the other side of the Rio Grande — by themselves, with no help — are children.”
In February 2021, the CDC exempted migrant children who arrived at the border without a parent or guardian from being expelled under Title 42. That has led to thousands of children staying weeks — and in some cases, months — in emergency shelters that were set up quickly to house them. In March, the CDC lifted the order completely for children.
As of Thursday, more than 9,300 migrant children were in government custody.
Mexico does not have to accept all migrants who are expelled from the U.S.
In January 2021, Mexico started enforcing a new law under which it cannot hold children younger than 12 in government custody. This forced the United States to temporarily admit some families with young children who had crossed illegally in South Texas.
Because U.S. immigration officials are limited in how long they can detain migrant children, they have released tens of thousands of families with instructions to report to immigration authorities.
In March, an appeals court said that the Biden administration could continue expelling migrant families under the pandemic-era rule, but not to countries where they would be persecuted. That ruling goes into effect Monday. In April, the government used the rule more than 7,000 times on migrants who arrived at the border as part of a family.
As of April 23, more than 94,000 migrant families were being tracked by Immigration and Customs Enforcement through ankle monitoring devices, online tracking and phone check-ins, according to the most recently available public government data.
Single adults have also been allowed into the country, despite the rule, although a lot less often. More than 131,000 single adults have been placed on tracking devices. Of the more than 1.1 million times that single adults were caught crossing the border in 2021, Title 42 was used to expel them 84% of the time.
Border officials are overwhelmed.
The unusually high number of illegal border crossings has overwhelmed the government at times, with holding areas filled to capacity while officials conduct interviews and fill out paperwork. This has led to hundreds of thousands of migrants being released into the United States with instructions to report for enforcement proceedings.
Expelling migrants under the public health rule is much faster — averaging about 15 minutes per person — than under normal circumstances, when questions and paperwork can take up to two hours, according to the Department of Homeland Security.
Particularly vulnerable migrants are granted humanitarian exemptions.
As of this past summer, more than 16,000 migrants apprehended at the border had been granted humanitarian exemptions to the public health rule, allowing them to stay, the department said at the time. Advocacy groups and international organizations have deemed these migrants vulnerable; they include transgender people and families with young children who live in dangerous places along the border. But the program ended in August when the Biden administration did not lift the public health rule, as human rights advocates expected.
DHS has continued to allow humanitarian exemptions to Title 42, but there is no organized program with a clear set of criteria for who is eligible. Between May 10 and this past Monday, the government allowed 1,247 people into the country under humanitarian exemptions to the public health rule, according to federal data.
Some countries will not take back their citizens.
There have always been countries that refuse to take back their citizens. In 2006, China refused to take back about 39,000 citizens who would have otherwise been denied entry into the United States. DHS released many of them to await immigration enforcement proceedings.
The United States faces the same challenge with other countries, such as Brazil, Cuba, Nicaragua and Venezuela. The number of people from those countries crossing illegally has increased. Between October and April, Cubans were turned away 1,180 times under the public health rule, even though border officials caught them crossing more than 113,000 times.
Now that the Biden administration has reinstated the Trump-era program known as Remain in Mexico, some migrants from these countries could have to wait out their cases in Mexico instead of the United States. But the program is not likely to siphon off a significant number of migrants waiting out enforcement proceedings in the United States. The government enrolled 3,012 people in the program from December to March. The Supreme Court heard oral arguments in the case over reinstating it in April.