What is Title 42 and how has the US used it to curb migration?

Title 42: Pandemic-era rule ends Thursday

Title 42 will end on Thursday, May 11, but what does that mean for the average American? Andrew Nietor, an immigration attorney, joined LiveNOW from FOX's Josh Breslow to explain.

WASHINGTON - This week marks the end of coronavirus restrictions on asylum that have allowed the U.S. to quickly expel migrants at the southern border for the last three years.

The restrictions are often referred to as Title 42, because the authority comes from Title 42 of a 1944 public health law that allows curbs on migration in the name of protecting public health.

The end of Title 42's use has raised questions about what will happen with migration at the U.S.-Mexico border. The Biden administration is preparing for an increase in migrants.

A look at what Title 42 is and why it matters:

How did it start?

In March 2020, the U.S. Centers for Disease Control and Prevention issued an order limiting migration, saying it was necessary to reduce the spread of COVID-19. Schools and businesses were closing their doors and hospitals were filling with patients. President Donald Trump was looking for ways to curtail immigration — his signature political issue.

The order authorized Customs and Border Protection to immediately remove migrants, including people seeking asylum. The order said areas where migrants were held often weren’t designed to quarantine people or for social distancing.

The Biden administration initially continued the policy. While many Democrats pushed President Joe Biden to overturn it, some — especially in border states — have advocated keeping it, saying the U.S. is unprepared for an increase in asylum-seekers.

Title 42 has been used more than 2.8 million times to expel migrants since its implementation. However, children traveling alone were exempt. Also, it has been unevenly enforced by nationality, partly because it's harder to expel people to some countries, including Venezuela and Cuba.

Why is it ending?

The Biden administration announced in January that it was ending the national emergencies linked to the pandemic. That also spelled the end of using Title 42 to deal with immigration. Thursday is the last day Title 42 is expected to be used.

This isn't the first time its use has come close to expiring. The CDC announced in April 2022 that the rule was no longer needed because vaccines and treatments were more widespread. Republican-leaning states sued to keep it in place.

While it seems likely that Title 42 will go away this week, last-minute legal maneuverings that keep it in place are always possible.

Migrant people camp on the banks of the Rio Grande as they wait to be processed by the Border Patrol El Paso Sector, Texas, after crossing from Ciudad Juarez, Mexico on May 9, 2023. (Photo by HERIKA MARTINEZ/AFP via Getty Images)

What happens next?

Starting Friday, asylum-seekers will be interviewed by immigration officers. Those who are found to have a "credible fear" of being persecuted in their home countries can stay in the U.S. until a final determination is made.

That can take years. While some people are detained while their asylum process plays out, the vast majority are freed into the United States with notices to appear in immigration court or report to immigration authorities.

One key concern is that migrants might feel they have a greater chance now to get asylum in the U.S. so more will attempt to enter and overwhelm authorities' ability to care for and process them. That could take U.S. Customs and Border Protection agents away from other responsibilities such as looking for smugglers and facilitating the billions of dollars of trade that crosses the southern border.

Already some locations along the U.S.-Mexico border are seeing greater numbers of migrants. U.S. Border Patrol Chief Raul Ortiz said on Twitter on Monday that his agents had stopped about 8,800 migrants a day over a three-day period. That was up from about 5,200 a day in March and at a clip to smash the December tally, the highest month on record.

Others have argued that no one really knows how many people will try to enter the U.S. They note that people expelled under Title 42 face no consequences, so some have tried to enter repeatedly.

Does the U.S. have a plan?

The U.S. says yes. Critics say no.

The federal government has said that it has spent more than a year getting ready. It expects more migrants will be coming initially.

The Biden administration's strategy has hinged on providing more legal pathways for migrants to get to the U.S. without coming directly to the border. That includes setting up centers in foreign countries where migrants can apply to emigrate as well as a humanitarian parole process already in place with 30,000 slots a month for people from four countries to come to the U.S.

The U.S. is expanding appointments available through an app called CBP One, which allows migrants to schedule a time to present themselves at a border crossing to request permission to enter.

There also are consequences. The U.S. is proposing a rule that would generally deny asylum to migrants who first travel through another country. It also wants to quickly screen migrants seeking asylum at the border and deport those deemed not qualified, and deny reentry for five years for those who are deported.

Republicans have lambasted the administration, saying the U.S. isn't doing enough to secure the border.

On Monday, Arizona Gov. Katie Hobbs called on the White House to deliver more funds for border communities as well as a satisfactory plan to deal with any increase in migrants. Hobbs is a Democrat, like the president.

Civil rights groups have other concerns. They have compared the severe limits on migrants who come through a third country to actions taken by Trump. They also said the plan to process asylum claims quickly at the border is not fair to migrants who have just arrived from a long, perilous journey.