Title 42 and the U.S. Southern Border
Why the Policy Was Always the Wrong Approach and What Comes Next

1| Title 42 is based in a public health authority, but was never about public health

In March 2020, the Director of the Center for Disease Control and Prevention (CDC) issued an order suspending entry to the United States for many individuals seeking to enter the U.S. from Mexico or Canada, citing the surging COVID-19 pandemic.

This policy is commonly referred to as Title 42, a reference to the section of U.S. law from which the authority is derived. This authority was established with the passage of the Public Health Service Act of 1944, but was mostly unused until it was invoked by the Trump Administration in 2020. This law gives the CDC the authority to bar individuals or goods from entering the U.S. if “the Surgeon General determines that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States.”

Despite the Administration’s weak justifications, the Title 42 order has never really been about public health.

This was clearly demonstrated in a legal brief filed by dozens of epidemiologists and public health experts, laying out substantial evidence explaining that the Title 42 order had no basis in public health. They explained, for example, that COVID-19 infections were far higher in the U.S. than in any of the countries of origin for most migrants subject to Title 42, and showed how Title 42 was selectively applied and did not impact tens of millions of individuals, including green card and temporary visa holders, traveling into the United States.

Title 42 was intended to specifically target and restrict access for undocumented immigrants and asylum seekers in particular, and to act as an immigration policy, not a public health policy, with no basis in science or medical research. Its intended and realized effect was to advance the Trump Administration’s persistent efforts to dismantle the asylum system and restrict immigration.

The CDC announced its plans to lift the Title 42 order last year, but legal challenges led to the Supreme Court ordering that the policy remain in place for now. However, the CDC’s announcement that it would end the broader Public Health Emergency for COVID-19 on May 11th has paved the way for the Title 42 order to finally be lifted.

2| Title 42 was designed to be chaotic from start to finish—but there is a better way forward

The very nature of the chaos created by the implementation of Title 42 guaranteed that there would be more chaos and confusion when the policy was lifted. The situation it created was deliberately designed to undermine trust in our immigration system and to stoke racist fears. This was the intentional trap laid by the Trump Administration, and it is the reality with which the Biden Administration has been grappling as it attempts to end the policy.

Title 42, like other deterrence-only policies (like Remain in Mexico and ‘metering’), has simply moved the challenges of increased forced migration across the border to Mexico, where tens of thousands of people are waiting in makeshift camps for their opportunity to enter the U.S. Title 42 policy has been the foundational U.S. border policy for the last three years, during which time almost all legal migration pathways were closed and encounters at the border continued to increase substantially. The order's limited exceptions facilitated family separation as parents send their children alone to enter the U.S. and seek protection.

For those intending for deterrence, Title 42 was a massive failure.

Of course, when the order is lifted, many people who have waited for very long in these terrible conditions will seek to enter the U.S It will take time to restore order to this process, rebuild our humanitarian infrastructure, and address the harm and damage done to families and individuals seeking relief.

However, despite the anticipated increases in arrivals of families and individuals as a result of the policy transition, the U.S. and its partners can take steps to do as much good and offer as much protection in the meantime. For example, non-governmental organizations (NGOs) have forged collaborative partnerships with the federal and local governments to receive and welcome migrants who will be permitted to enter. These organizations can provide safe shelter, transportation, and access to legal counsel, all of which help protect migrants' safety and greatly increase the likelihood that they will fully participate in their legal asylum process.

3| Significant increases in individuals arriving at the border reflect the lack of real legal pathways for migrants in the Western Hemisphere

As of May 2023, there had been more than 478,000 individuals removed from the U.S. border under Title 42 or through expedited removal under Title 8 this year. Additionally, Border Patrol has encountered more than one million people crossing in between ports of entry.

These historically large numbers reflect the fact that, for a long time, there have been virtually no reliable legal immigration avenues for migrants in the Western Hemisphere, and that the few pathways that do exist have become even more difficult to access in recent years. And while the Biden Administration has taken steps to establish additional pathways, and has announced additional measures to expand the restricted pathways described below, a strong step in the right direction.

Just some of the limitations that have impeded legal migration in the Western Hemisphere include:

• Refugee admissions for Latin America and the Caribbean have been capped at extremely low levels, initially only 15,000 for FY 2023. The Biden Administration has announced plans to increase the cap for this year.
• Family-based immigration programs have been consistently capped at 226,000 each year, and the family-based system faces a backlog of roughly 4 million people waiting for a chance to submit their applications. The Biden Administration recently announced family reunification pathways to allow some backlogged family members to be reunited in the U.S. while they wait for their applications to be processed.
• Employment-based immigration channels are capped at 180,000 each year, with most green cards going to individuals who are already living and working in the U.S.
• More than 90% of H-2A temporary agricultural work visas go to farmers from Mexico, with Central and South American countries receiving few, if any, of these visas.
• Many of the countries in these regions, including Mexico, El Salvador, Haiti, Honduras, and Venezuela, are already ineligible for Diversity Visas.

These limitations, paired with the fact that ports of entry were closed for three years, left asylum as one of the few remaining avenues for individuals seeking relief in the U.S., and drove many to attempt crossing between ports of entry just for a chance to apply. And while the Biden Administration is working to change course, these limited existing pathways are under constant attacks, including legal challenges and legislative proposals to permanently eliminate them.

4| The Biden Administration’s success with new pathways risks being undermined by repeated returns to hardline deterrence-first policies

The Biden Administration’s recent efforts to expand legal pathways have already been very successful in reducing the number of people traveling to and arriving at the southern U.S. border. Following the implementation of the new parole application process for individuals from Cuba, Haiti, Nicaragua, and Venezuela, Customs and Border Protection recently reported that encounters of individuals from those countries between ports of entry fell from an average of 1,231 per day in January to only 46 per day by the end of February, a 98% decline.

However, the Biden Administration risks overturning its own successes if it moves forward with other counterproductive proposals focused solely on deterrence. For example, the Biden Administration’s proposed asylum transit ban would limit access to the legal asylum process for almost everyone traveling to the U.S. to seek relief, and would replicate the same disastrous and dangerous results as similar Trump Administration policies like metering and Remain in Mexico.

The Administration has also suggested that it is considering restarting cruel family detention practices, and has pledged to increase the use of expedited removal to swiftly remove individuals without a full legal process.