Will lifting Title 42 cause a border crisis? It’s already here.
By James Dobbins and Miriam Jordan
For months, migrants from Nicaragua and Colombia, toddlers on their shoulders and knapsacks on their backs, have been wading across the shallow waters of the Rio Grande near El Paso and forming lines to turn themselves in to U.S. border authorities. Farther west, in Arizona, migrants from Russia, India and South America have been passing through gaps in the border wall and surrendering to U.S. agents.
None of them have been held back by a nearly 3-year-old public health measure, known as Title 42, that was billed as an attempt to effectively close the border against the soaring numbers of migrants unlawfully entering the United States. They are not being barred from making an asylum claim; they are not being expelled to Mexico.
Migrants are lining the sidewalks in El Paso, where many have been sleeping under donated blankets because shelters are at capacity. Migrants taken into custody in Arizona are being bused to San Diego for processing to avert chaos at crowded holding facilities, and then dropped off at bus stations to head for destinations across the country.
The Supreme Court on Tuesday blocked the Biden administration’s attempt to lift the Trump-era pandemic restriction at the southern border after 19 Republican-led states argued that the rule’s immediate termination would wreak havoc at the border.
But the reality is that, despite all the dark predictions over what will happen when Title 42 is lifted, the border already is in the midst of a record-setting migration surge that is likely to persist for the foreseeable future. The border control measure is full of exemptions under which tens of thousands of migrants every month are showing up at U.S. ports of entry with a relatively high degree of confidence that they will be allowed to stay.
“Postponing the end of Title 42 will avoid a tiny moment of chaos but doesn’t provide a solution for what is going on at the border,” said Andrew Selee, president of the Migration Policy Institute, a nonpartisan think tank.
“The reality is that people are coming from a much wider group of countries than ever before, and most aren’t subject to Title 42,” he said. “There is not a set of policies to deal with growing numbers of people from other parts of the world. Title 42 has long lost most of its effectiveness as a deterrence tool.”
Last month, 29% of all border crossers were expelled under Title 42, while the vast majority came from a long list of countries — including Colombia, Cuba, India, Nicaragua and Russia, among others — for which Title 42 does not apply.
In thousands of other cases, migrants were allowed to enter the United States because they were traveling with children or qualified for some other form of protection under humanitarian law. An unknown number, most crossing in remote areas, were able to evade border authorities and enter the country without being apprehended.
The 2.4 million Border Patrol encounters with migrants in the 2022 fiscal year that ended Sept. 30 represented a record high. And it is probably no accident that the steepest increases were among migrants not subject to Title 42. There was a nearly 2,000% increase in the number of Colombians encountered compared with the previous fiscal year; Indians increased by 607%; Cubans by 471%; Russians by 430%; and Nicaraguans by 227%.
By contrast, apprehensions of Hondurans and Guatemalans — two countries that made up a large share of the migrants arriving in the United States in most recent years, but whose nationals are now subject to expulsion under Title 42 — were down by 33% and 18%, respectively.
This trend has continued in the new fiscal year: Of the migrants encountered in November at the border, 39% were from Mexico, El Salvador, Guatemala or Honduras, whose nationals can be expelled under Title 42. Cubans and Nicaraguans, who cannot be swiftly expelled, outnumbered migrants from the Northern Triangle countries — Guatemala, El Salvador, and Honduras — a situation that would have been unheard-of even a year ago.
“We are pretending that this policy that applies to a small subset of people is going to cure the push factors globally encouraging so many to travel to the border,” said Jeremy Robbins, executive director of the American Immigration Council. “Even with Title 42 in place, the numbers are bound to keep increasing.”
Rosina Omier, 40, and her niece, Sharina Bons, 18, left Nicaragua on Nov. 18 and crossed the Rio Grande near downtown El Paso a month later to ask for asylum. They were in custody for 12 hours.
“It was fast,” Omier recalled. “We entered at night and were released at 8 a.m.”
Dario Estrada, 21; Vanesa Mejia, 20; and their 18-month-old son, Mathias; left Medellín, Colombia, on Oct. 1, worried over what they said was the rising gang violence in their neighborhood.
After wading across the murky river near El Paso, they pushed through a crack in the border wall and were picked up by U.S. authorities who instructed them to check in with immigration enforcement within 60 days in Houston, their stated destination.
But they had no money for bus fare to Houston, and after spending three nights at a local shelter, which limited stays to 72 hours, they moved Tuesday night to the sidewalk in front of a church, where they slept under blankets on cardboard boxes.
Introduced by the Trump administration in March 2020, Title 42 is a provision of a 1944 health law that empowers the government to impede the entry of foreigners during public health emergencies. Critics from the beginning said that the rule had been adopted not to control the coronavirus but to impede the large numbers of migrants who had been fleeing poverty and gang violence in Central America and Mexico.
But even after the pandemic was no longer an issue, the Biden administration has continued to use the measure to summarily expel migrants from Mexico, El Salvador, Guatemala, Honduras and, more recently, Venezuela. Such migrants could easily be turned away from the U.S. because Mexico was willing to accept them.
U.S. authorities were also able to use Title 42 to expel migrants from countries where they could be easily flown home, such as Haiti and Brazil. In all, the public health measure has been used to justify 2.5 million expulsions, including many migrants who might otherwise have applied for asylum in the United States.
From the beginning, though, there were countries for which it was logistically difficult to fly migrants home, mostly because the United States had no diplomatic agreement for returning them. Colombia, Nicaragua, Venezuela and Russia all fit into that category, and those are the countries which, in many cases, have fueled the latest surge in migration that shows no signs of abating.
Facing mounting pressure to rein in the number of unauthorized border crossings, the Biden administration could extend Title 42 to nationals of other countries as it recently did with Venezuelans in November.
In the meantime, even the news that the Supreme Court had left the U.S. border closed to many migrants failed to stop the ever-growing number of migrants assembling in Ciudad Juárez, Mexico, on the other side of the border from El Paso, hoping for a chance.
One of them, José Ramón Aguilera Guzmán, 22, said he was the first in his family to leave Venezuela. Even with Title 42 in place for now, he said, he has no choice but to wait.
“What can you do with a monthly salary of $2 if your family is seven or eight people?”