Title 42, a pandemic-era policy allowing for the rapid expulsion of immigrants at the border, is set to expire at 11:59 p.m. Thursday, sparking fears of a humanitarian and security crisis.
Border communities are bracing for a surge of immigrants who may be emboldened by its expiration given the prospect of entering the country without being removed immediately, threatening to worsen an already dire situation at the southern border.
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Here is what you should know about Title 42.
What is Title 42?
Under the Trump administration, the Centers for Disease Control and Prevention invoked Title 42 as a health directive intended to curtail the spread of COVID-19. Using those emergency health powers, the Trump administration gave U.S. Customs and Border Protection the authority to eject immigrants without holding an asylum hearing.
This was significant because Border Patrol agents no longer had to take immigrants into custody and could move to deport them rapidly. Not only did this help tame the spread of COVID-19, but it also served as a deterrent against those seeking to cross the border with hopes of staying in the United States.
There have been at least 2.8 million instances of authorities using that power since the policy was put in place, according to CBP data.
Why is it expiring?
President Joe Biden has been moving to end the national emergency stemming from the COVID-19 pandemic. As a result, Title 42 is set to go away.
The policy was first enacted about one week after then-President Donald Trump declared a national emergency on the pandemic on March 13, 2020.
For months, officials knew Title 42 was only temporary. It was once set to expire on May 23, 2022, but was extended amid a series of court battles.
Enforcement of Title 42
Trump initially took advantage of Title 42 and moved to expel virtually all illegal immigrants who breached the border. That eventually grew more complicated when people from beyond Mexico and Central America began crossing the border at higher rates than in the past.
Mexico refused to accept immigrants from countries beyond Central America, prompting the U.S. to take them into custody. Biden adjusted enforcement procedures of Title 42 to permit Border Patrol only to remove immigrants from select countries.
The change allowed more immigrants to seek asylum and stay in the U.S. while awaiting a court hearing if they didn't have a criminal record.
At the moment, illegal immigrants from countries such as Cuba, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, or Venezuela are subject to Title 42.
Although Title 42 was still in effect, encounters at the southern border topped 2.3 million in fiscal 2022, according to CBP data, a record number.
Fallout of Title 42 expiration
Ahead of Title 42's demise, officials warned of tens of thousands of immigrants assembling in Mexico seemingly waiting for its expiration. Officials have already seen signs of an influx at the border, apprehending or detecting tens of thousands of people, according to Border Patrol.
Still, Biden administration officials have sought to allay fears of a surge while tempering expectations. Recently, Border Patrol Chief Raul Ortiz told reporters that he doesn't anticipate arrests to be as high as 18,000, as some experts were suggesting.
Ruiz also pointed to a rise in arrests and illegal immigration in recent days as the likely peak of the anticipated surge.
"The increases that we’ve seen in the last five to six days, I think, were really the surge. I don’t — after May 11 — I don’t expect us to have 17[,000]-18,000 apprehensions like some predicted," Ortiz said.
Homeland Security Secretary Alejandro Mayorkas conveyed a similar message over the weekend and underscored that the department has other enforcement tools at its disposal besides Title 42.
"We've been preparing for this for more than a year and a half," Mayorkas told CBS's Face the Nation. "We are working closely with many countries to the south. It's going to take our plan a while to really take hold — for people to understand that they can access lawful, safe, orderly pathways before they reach the border."
Despite assurances from leaders, border communities have been preparing for the worst. El Paso declared a state of emergency and currently has thousands of illegal immigrants living on the streets. Other cities such as Brownsville, Texas, have also seen marked upticks in border crossings.
Preparations
Last week, Biden announced plans to send 1,500 troops down to the border. They are not expected to assist in direct enforcement activities, according to Mayorkas. Additionally, the Border Patrol has also slowly begun to shift back to some of its normal pre-pandemic protocols to prepare its agents for the change.
State officials also appear to be taking steps to prepare. Recently, Texas state troopers apprehended roughly 370,000 illegal immigrants, highlighting Gov. Greg Abbott's (R-TX) Operation Lone Star efforts to address the border crisis.
Last year, in anticipation of Title 42's expiration, the DHS unveiled a six-pillar plan. It featured several steps, such as bolstering immigrant processing capacity, surging personnel and resources, working to counter immigration in the Western hemisphere, and more.
The Biden administration has also tightened some border regulations, including one policy that would largely restrict immigrants who venture through other countries before crossing the U.S.-Mexico border from asylum applications. The rule does not extend to unaccompanied children.
Political reaction
The Biden administration has weathered intense scrutiny from both sides of the aisle over its handling of Title 42's end. Several Democrats, such as Sens. Kyrsten Sinema (I-AZ), Mark Kelly (D-AZ), Bob Menendez (D-NJ), and Joe Manchin (D-WV), have slammed the Biden administration over its response.
Simultaneously, Biden is under pressure from liberals not to adopt too much of a hard-line approach to immigrants.
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Republicans have seized the opportunity to knock the Biden administration as well. The House GOP has been working on H.R. 2, the Secure the Border Act of 2023, featuring an array of reforms to strengthen the border and address the growing crisis.
There have also been other proposals floating around, such as a bill from Sinema and Sen. Thom Tillis (R-NC) to keep the Title 42 policy in place for the next two years, albeit without leaning on pandemic powers to do so.