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What is Title 42, and what does its end mean for U.S. border security?

What is Title 42, and how will its end affect border security?

May 15, 2023 by AFP

By Jordan Fischetti

Title 42 ended on May 11, 2023. The following article explains what Title 42 is and what its termination means for U.S. border security.

Unless specified otherwise, all data is taken from March 2020 through March 2023 at the southwestern border. An “encounter” refers to any interaction taking place in any location along the border.

An “apprehension” refers to a person caught by Border Patrol agents between ports of entry. The majority of encounters at the border are apprehensions.

What is Title 42?

Title 42 is colloquial shorthand for the Center for Disease Control’s self-asserted authority under sections 265 and 268 of U.S. Code Title 42 to expel immigrants to prevent the spread of COVID-19.

On March 20, 2020, the CDC delegated power to the U.S. Customs and Border Patrol (CBP) to rapidly expel immigrants both at and between ports of entry, rather than process them under normal immigration procedure.

Why was Title 42 enacted?

Title 42 was enacted to reduce the amount of time CBP agents spent with apprehended migrants, thus reducing the spread of COVID-19. A Title 42 expulsion can be as quick as 15 minutes. In contrast, an expedited removal under normal immigration law (Title 8) can last up to 1.5 hours.

Who were the main subjects of Title 42 expulsions?

The people expelled under Title 42 were overwhelmingly single adults from Mexico and the Northern Triangle (El Salvador, Guatemala, and Honduras). In fact, single adults from these countries accounted for approximately 87% of all Title 42 encounters.

Approximately two-thirds of all expelled single adults, or roughly 1.64 million people, were from Mexico alone.

Put in another context, single adults from Mexico and the Northern Triangle were subject to Title 42 expulsions over 90% of the time.

In contrast, single adults from all other countries were subject to Title 42 expulsions less than 11% of the time.

Who else was subject to Title 42 expulsions?

Principally, family units from the Northern Triangle. They accounted for just over 8% of all Title 42 encounters, and about 44% of these family units were subject to Title 42 expulsions.

Less than 7% of all Title 42 encounters involved citizens of countries other than Mexico and the Northern Triangle. Less than 9% of all foreign nationals from these countries were subject to Title 42 expulsions.

Unaccompanied minors were subject to Title 42 expulsions until a federal court exempted them on November 18, 2020.

What was an unintended consequence of Title 42?

A big increase in repeat crossings (people apprehended crossing the border more than once in a 12-month period).

While Title 42 enabled security personnel to rapidly expel migrants in as little as 15 minutes, this swiftness came at the expense of the deterrence imposed by the standard removal process.

Since Title 42 was a public health law and not an immigration law, authorities weren’t able to thoroughly investigate border crossers and impose any kind of immigration or criminal consequence for repeat crossings.

These perverse incentives caused repeat crossings to skyrocket from under 7% in FY 2019 to about 26% in FY 2020 — the first year the policy was in place (from March 2020 onward) — and almost 27% in FY 2021 (The annual report has not been released for FY 2022 and FY 2023 isn’t over, but the Monthly Operational Updates report repeat crossings around 25% on average).

One particularly active man claimed to have attempted entry around 30 times! Repeat crossings in dangerous areas between ports of entry strained already limited Border Patrol resources and endangered personnel.

Also, Title 42 especially attracted single males who wished to avoid detection. Considering that this policy was overwhelmingly applied to single adults, the number of apprehensions for single adults, which had hovered between 20,000 and 40,000 from January 2012 until March 2020, skyrocketed after the enactment of Title 42 to over 100,000 every month since March of 2021.

Did Title 42 hurt smugglers? What about cartels?

No. Unfortunately, quite the opposite. More repeat crossers meant more business for smugglers and cartels.

As one smuggler interviewed by Reuters pointed out,

 “It’s [Title 42 is] better because if people get caught, they come right back,” he said. “So it’s like, we’re still in business.”

Furthermore, because Title 42 expulsions were much quicker than deportation encounters, these interactions didn’t provide Border Patrol officers with sufficient time to learn about smuggling networks in the area.

Thus, Title 42 provided smugglers with the double benefit of increased profits and less monitoring.

It also enriched organized crime groups who kidnap, often torture, and ransom expelled immigrants.

What will be the immediate effect of ending Title 42?

The immediate effect of ending Title 42 will likely be an increase in apprehensions. However, there are many factors at play here.

First, smugglers have been and will continue to spread misinformation about the termination of Title 42. They will likely tell immigrants that now is the best time to enter.

For a look at smuggler misinformation in action, look no further  than March 11, 2023, when approximately 1,000 immigrants rushed the border in El Paso because they were told it was “Day of the Migrants.”

Second, apprehensions have peaked, on average, in May every year from FY 2014-2022. June has usually been in second place during this time, and July through September have not been far behind.

Thus, even without a policy change, we would expect to see an increase in apprehensions in May followed by a slight tapering over the next four months.

What will be the long-term effects of ending Title 42?

Long-term, ending Title 42 will likely result in a  decrease in apprehensions. As mentioned above, Title 42 led to a vast increase in the number of single adult apprehensions. With immigration and, possibly, criminal consequences reintroduced, we can expect apprehensions to dwindle.

However, they likely won’t drop back to pre-Title 42 levels. While its termination likely will have a significant effect on single adults from Mexico and the Northern Triangle, increasingly more people, including single adults, are coming from other countries.

In fact, this year, almost half of all single adults have come from other countries. Because they have overwhelmingly not been subject to Title 42 expulsions, its termination shouldn’t have a big effect on their numbers.

We should also see a drop in apprehensions for unaccompanied minors. After the aforementioned federal court decision exempted UACs from Title 42 expulsions, apprehensions increased from 4,475 in November 2020 to 5,280 in January 2021 and then skyrocketed to 18,870 that March.

In larger context, from 2012 through November 2020, about 4,000 UACs per month were apprehended by Border Patrol. Since December 2020, over 12,500 per month have been apprehended. This is roughly double the monthly average of FY 2019, the worst fiscal year, during the preceding period.

This vast increase occurred because, while family units were likely to be expelled, UACs were not. Thus, parents were incentivized to send their children alone, frequently after first trying to cross as a family unit.

Without this incentive, apprehensions of UACs should eventually plummet, if not down to 4,000 per month, at least somewhere close.

Jordan Fischetti is an immigration policy fellow at Americans for Prosperity.