Title 42 dates back to the 1944 Public Health Act. Many decades ago, this law's primary purpose was to address social welfare and public health and grant the government health authorities the power to take emergency actions to prevent the spread of communicable diseases.
While the enactment and effectiveness of this law occurred several years ago, its use became more critical at the beginning of March 2020 to help the Trump administration curb the spread of COVID-19 by regulating border crossing. Unfortunately, despite the worldwide access to vaccines to fight this deadly infection, Title 42 policies are still in place, affecting several migrants who wish to cross the border.
What Title 42 Means
The Donald Trump administration permitted border officials to send back migrants who entered or attempted to enter the U.S.-Mexico border in March 2020 to halt the spread of the deadly COVID-19 virus. Before COVID-19, migrants could cross the border unlawfully, seek asylum status, and be allowed to enter the country.
Donald Trump's administration typically used the Title 42 policy to override immigration laws that permitted migrants to seek asylum. According to Title 42, border agents can deny migrants the right to ask for asylum, using the pandemic as justification. However, children and families traveling alone were exempt.
A migrant expelled from the country under Title 42 must return to his/her home country or any most recent transit country. Fortunately, there were no real consequences or penalties for crossing the border illegally, meaning some migrants were willing to try crossing the border illegally after being denied entry on the first attempt.
When former President Joe Biden won the presidency, he maintained the Title 42 policy but later tried to end its application in 2022. However, the Republicans sued him, arguing that the policy was necessary for border security. The court required these rules to remain in place until 2023 the Biden administration announced that national COVID-19 emergencies were over.
What Will Happen to Migrants Who Are Not Expelled?
The Border Patrol has deported more than two million people since the Trump administration implemented Title 42 in 2022. The Joe Biden administration's continued hesitancy about the future of Title 42 could leave those who apply for asylum from dangerous home countries in a precarious situation.
Avoiding expulsion or attempting to cross the border illegally can attract several challenges, including detention, expedited removal, and immigration court cases.
What Ending Title 42 Means
During the Trump administration, border agents expelled all types of migrants. However, the Biden administration introduced exemptions to this law, allowing unaccompanied children to stay at state-run facilities or federal shelters until they unite with their families.
On May 11, 2023, President Biden concluded the COVID-19 National and Public Health Emergencies. The end of Title 42 means the border officials will likely return to the Title 8 policy, which allows the prosecution of immigrants without proper documentation for illegally entering the country.
While this offense is a misdemeanor, the prosecutor can file felony charges against you if you have a history of entering the country illegally. After serving your sentence, the immigration officials will deport you to return to your home country. Border Patrol agents can speed up deportation without appearing in court.
The Title 8 policy permits more migrants to apply for asylum and be evaluated for "credible fear" of returning to their country of origin than the Title 42 policy. Eligible individuals are processed for release and required to appear in an immigration court, and the ineligible individuals are deported to their home countries.
As an immigrant, you can seek political asylum during this process. Fortunately, the immigration officials have the authority to allow you to remain in the country pending the outcome of your asylum case. If you cannot establish a legal claim to stay in the country, the immigration officials will deport you to your home country.
If you are a repeat offender, meaning you have a history of attempting to enter the country illegally, you should expect some penalties in addition to deportation.
It is worth noting that lifting Title 42 does not necessarily mean the border agents will allow immigrants to enter and stay in the country. To discourage immigrants from crossing the border to seek asylum, the government requires them to use a cell phone-based application to request asylum from their home countries online or schedule an appointment with the immigration agents at the point of entry.
Generally speaking, the current wait time to receive the final decision about your asylum case is about five (5) years. General impacts of ending Title 42 border policies include:
- Resurrection of rapid deportation policies from the Trump administration
- Increased criminal prosecution due to the act of migration
- A new set of regulations and a greater reliance on current ones, including the use of home confinement, surveillance, and detention of more migrants trying to enter the southern border
- Numerous asylum seekers from Asia, Africa, the Middle East, and Latin America who have no other way to enter the country will have their journeys hampered by a trilateral announcement to restrict transit through Panama
- Militarization of the U.S.-Mexico border, meaning the Department of Defense will send several troops to the region
How Title 42 Affected Immigration Enforcement at the U.S.-Mexico Border
The Border Patrol uses a metric known as encounters" to monitor migration trends at the southwestern border. This term refers to two distinct kinds of events, that is:
- Expulsions — This is where the immigration officials remove migrants from the country under Title 42 policy
- Apprehensions — This is where the immigration officials detain migrants in the country temporarily under Title 8 policy
The Border Patrol can decide whether to use Title 8 or 42 when processing migrants. However, most encounters with migrants during COVID-19 resulted in expulsion under Title 42. Between April 2020 and March 2022, there were approximately 2.9 million interactions with migrants along the U.S.-Mexico border.
At least 61 percent of those encounters resulted in the expulsion of migrants under Title 42. The remaining 39 percent resulted in those migrants being apprehended under the Title 8 policy.
It is important to note that although the number of encounters with migrants increased significantly during the pandemic, the total number of people encountered was significantly lower. About a quarter of migrant encounters at the U.S.-Mexico border during the COVID-19 pandemic involved repeat crossers.
In comparison, only 7% of migrant encounters in the financial year just before the pandemic involved repeat crossers. That means there is a high chance the Title 42 policy caused the increased rate of repeat crossers during the pandemic since it allowed those whom border officials expelled to attempt to enter the country without specific penalties they would face under Title 8.
How the Biden Administration Used Title 42 Differently From the Trump Administration
Title 42 served as the foundation for all immigration enforcement actions at the U.S.-Mexico border by both the Trump and Biden administrations during the COVID-19 pandemic. However, the Trump administration did so more than Biden's administration when considering all the border agents had with migrants, leading to expulsion or removal from the country.
During the Trump administration, at least 80% of monthly interactions between migrants and border agents at the U.S.-Mexico border ended in their expulsion. However, under Biden, who promised to undo Trump's immigration policies during his campaign, this percentage fell sharply.
Even under Biden's administration, expulsion of migrants was still common. Expulsion was the outcome of roughly 51% of migrant encounters at the southwest border in March 2022.
How the New Border Migration Restrictions Work
The goal of the border agents is to process migrants under the recent asylum rules within days of their arrival in light of Title 42 and to deport them quickly if they do not pass an initial asylum screening. In addition to over 500 immigration personnel being temporarily assigned the duty to help with interviews, over 1500 troops were temporarily deployed to support the Border Patrol.
Since Title 42 ended, migrants who schedule their arrival on time at points of entry, like airports, can enter the country and apply for asylum. As of March 2022, over 547,000 people scheduled cell phone-based appointments, with some of the top nationalities being Mexican, Haitian, and Venezuelan.
Other Factors That Affect Migration and Border Policies
In addition to the usual push and pull factors, like poverty, disaster exposure, armed conflict, political instability, and gender inequality, other factors that could affect migration and border policies include the following:
Economic and Social Policies
A country's policies on education, agriculture, the labor market, social protection, and financial services could affect the rate of migration and asylum seekers.
Public Policies
Another factor that could impact migration and border policies is public policies. Public policies that control individual movements, like border controls, visa requirements, and family reunification laws, could also affect migration and the number of asylum seekers.
Demographic Change
Your country's economic decline, growth, youthfulness, and aging could significantly affect employment opportunities and economic development, triggering the need for migration to look for better opportunities.
Impact of the New Biden’s Immigration Rules on Spouses of Legal Citizens
In addition to vigorously working hard to secure our borders, Joe Biden's new immigration rules will also offer a pathway to citizenship for several immigrants without legal status in the country. The recent immigration measures announced on June 14, 2024, will allow undocumented spouses of lawful citizens to apply for naturalization or permanent residence without leaving the country.
Initially, under the Trump administration, undocumented spouses of lawful citizens had to go to their home country to apply for citizenship through their consulate. That means leaving your family in the country with no assurance that you will be allowed to return to them in the future.
Fortunately, the new Biden immigration rules will fix this issue without any significant change in the immigration law. Under this new immigration policy, more than 50,000 undocumented children aged under 21 whose parents are married to lawful citizens will also qualify to apply for naturalization.
According to the Biden administration, this move will help keep families together and boost the country's economy. However, not every undocumented immigrant is eligible for this program. If you are a spouse of a U.S. citizen, you must meet the following criteria to qualify for Biden's new immigration spousal program:
- Must be present in the country without parole or admission
- Must have lived in the country for at least ten (10) years from the date of filling
- Have a lawfully valid marriage with a U.S. citizen
- Have no disqualifying criminal record and otherwise not be considered a threat to public safety
- Must submit your biometrics and undergo a thorough background review and public and national security vetting
If your application is approved, you will have three (3) years to apply for naturalization or a green card and receive your temporary work permit. In the meantime, this temporary work permit will protect you from deportation. Once you receive your green card, you can finally apply for citizenship.
Another major immigration law that benefits undocumented immigrants that you ought to know about is the Deferred Action for Children Arrivals (DACA) scheme, launched by former President Barack Obama and his then Vice President Biden in 2012.
Under this program, undocumented immigrants who have received a STEM degree in the country can apply for work visas. According to Biden, these people can apply their knowledge and skills for the betterment of the country.
Find a Credible Immigration Attorney Near Me
The new border immigration rules are confusing and restrictive. To increase your chances of qualifying for asylum and prevent criminal repercussions, retaining the services of an attorney is vital if you are planning to migrate via the U.S.-Mexico border. However, you do not have to go through this confusing legal process alone.
Our reputable attorneys at California Immigration Attorney can help you navigate the confusing immigration laws to increase your odds of securing the best possible outcome. We invite you to call us at 424-789-8809 to schedule your first obligation-free consultation with one of our attorneys today.