Title 42 extended to at least February, Biden seeks to expand use

[This story has been updated to reflect today's announcements by President Biden and DHS Secretary Mayorkas.]

US border policy has entered another phase of confusion following the Supreme Court decision to block the Biden administration’s effort to end the implementation of Title 42. Our goal in this blog is to explain what is happening and encourage you to take action against a horrible stopgap measure put forth by the Biden administration, who announced today that they will expand the use of Title 42 to expel Haitians, Nicaraguans, and Cubans to Mexico.

What is Title 42?

Title 42 references a chapter in the US legal code that gives authority to Surgeon General to block immigration from countries where there has been an outbreak of a communicable disease. The Centers for Disease Control and Prevention issued a directive in March of 2020, citing Title 42 authority, that empowered the Department of Homeland Security to immediately expel any migrant encountered by border patrol, even those encountered at regular ports of entry. This was pitched as a means to limit the spread of COVID, but its implementation led to a suspension of a migrants’ rights to seek asylum or other humanitarian relief within the United States. Public health professionals denounced the order when it was issued, and there is no evidence since that it has had a public health benefit.

The result has been mass removals. Under Title 42, anyone encountered at the border can be expelled immediately back to Mexico, or removed to their home or third country as soon as possible. Over 2 million people have been expelled.

Is Biden ending Title 42?

As a presidential candidate, Biden promised a departure from Trump’s hardline immigration policies. Biden did not explicitly promise to end Title 42, but did promise a review of the program as part of a broader effort to reform border policy.

Following review, Biden renewed Title 42 with modifications twice in 2021. The most important modification was halting the expulsion of unaccompanied minors, which Trump’s order allowed. That said, Biden has expelled far more people than Trump did using Title 42. There has also been a large increase in encounters at the border since Biden took office, largely due to the impact of COVID on regional economies.

The Biden administration tried to end Title 42 in May of 2022.  A federal court issued an injunction blocking the administration from ending enforcement after several states sued. In November a different federal court mandated that Title 42 be ended by December 21, 2022. Several states once again appealed to block the administration from ending Title 42. The Supreme Court required that all sides present their case before the court in February. The result is that Title 42 is still in effect until at least February of 2023. 

Is Biden expanding Title 42 implementation now?

Shortly after the Supreme Court issued its ruling, the Biden administration proposed continuing to use Title 42, and expand its use for migrants from Cuba, Haiti and Nicaragua. The model discussed for this expansion is a program they have already applied to people from Venezuela. 

To understand what is going on here, we need to step back and review one other aspect of Title 42. When Title 42 was announced in March of 2020, the government of Mexico only agreed to accept people expelled from the US border if they were Mexican nationals or from Guatemala, El Salvador, or Honduras. Indeed, nearly 90% of all people expelled under Title 42 are from one of these four countries. People from other countries were either detained until they could be flown out, as happened to 24,000 Haitians in 2021 and 2022, or they were admitted under Title 8, which simply refers to regular immigrant processing. Title 8 processing has been the approach for most Nicaraguans and Cubans, at least in 2022. 

Title 8 was also the approach for most Venezuelans until the Biden administration announced new rules in September. The administration announced a new program that would allow 24,000 Venezuelans to come into the United States if they met certain requirements concerning documentation, and only if they had transited other countries, like Mexico, legally. Everyone else is expelled under an agreement with Mexico to receive them. Under these new rules, the vast majority of Venezuelans do not qualify for entry. One result has been a decline in encounters at the border, which the administration considers a success.

The Biden administration announced that it will allow up to 30,000 people a month from Venezuela, Nicaragua, Cuba, and Haiti to enter the U.S. through humanitarian parole. Anyone who does qualify, or crosses through Mexico, Panama, or the U.S. after today will be expelled to Mexico under Title 42, or processed through Title 8. While we celebrate any expansion of legal pathways to immigration, this essentially creates an asylum ban for anyone who does not have the support or resources to apply.

We think this is a bad idea. It violates well established asylum processes under US law, not to mention international obligations of non-refoulement. It also violates many of the principals regarding asylum that the administration otherwise espouses.

Take Action: Tell the Biden Administration not to expand Title 42!