The latest enforcement statistics from U.S. Customs and Border Protection show the relevance of the Title 42 pandemic-era policy as a border-control measure has been in steep decline under the Biden administration.
U.S. authorities made 233,740 immigration arrests along the Mexican border in November — one of the highest monthly totals ever — but only 66,984 resulted in an “expulsion” under Title 42, the latest CBP figures show. The policy was used in less than 29 percent of border arrests, the lowest rate since the implementation of Title 42 in March 2020 at the start of the coronavirus pandemic.
Under the Trump administration, CBP used Title 42 to expel more than 80 percent of border crossers, but that rate began falling after President Biden took office. His administration exempted unaccompanied minors and pared the application of the measure by exempting groups deemed to be vulnerable.
Other factors for the decline of Title 42 have been outside the administration’s control.
For example, migrants from Cuba and Nicaragua have arrived to the United States in record numbers in recent weeks, many crossing into El Paso. They have overwhelmed CBP facilities and shelter capacity, leaving migrants sleeping on the streets in the bitter cold. CBP statistics show the agency took nearly 69,000 migrants from Cuba and Nicaragua into custody along the border in November, but less than 1 percent were sent away via Title 42.
The reason: Mexican authorities generally do not accept returns of migrants from those nations from the United States, and strained relations with Cuban and Nicaraguan authorities severely limit the United States’ ability to send deportation flights.
“I don’t see what will slow down Cuban and Nicaraguan migration at this point,” said Adam Isacson, a border security analyst at the Washington Office on Latin America, a D.C. advocacy organization. Isacson visited El Paso last week.
The November statistics show the Biden administration has been using Title 42 most aggressively on the one group that is easiest for CBP to handle without the measures: Mexican adults. Of the nearly 67,000 expulsions carried out by CBP last month using Title 42, more than 60 percent were adult migrants from Mexico who could otherwise be quickly returned — and potentially face criminal charges — under standard immigration procedures.
The number of migrants from Mexico taken into custody who are repeat offenders has soared under Title 42 because those who are expelled can try again and again without fear of prosecution or jail time. Biden officials say they have increased criminal prosecutions for these “recidivist” crossers and will do so even more aggressively when Title 42 is lifted.
Venezuelan migrants were the one group last month for whom Title 42 appeared to have the biggest effect. The Biden administration responded to a record surge of Venezuelans by announcing a program in October that offers them a chance to enter the United States legally through a “parole” program similar to a previous arrangement for Ukrainian refugees. The program used Title 42 as a deterrent by threatening Venezuelan migrants with expulsion to Mexico if they cross the U.S. southern border illegally instead of applying for lawful entry.
Almost immediately their numbers fell by more than 90 percent, according to CBP figures. “Venezuelans have dropped from roughly 1,100 a day the week before that process was announced, to roughly 100 a day consistently throughout November,” CBP said in a statement.
In anticipation of Title 42′s possible end, thousands of Venezuelan migrants have arrived to the Mexican border city of Ciudad Juárez, opposite El Paso. An abrupt increase in their numbers could place an even greater strain on CBP capacity and border towns in Texas, as well as New York City, Miami and other destinations for new Venezuelan arrivals.
Texas Gov. Greg Abbott (R) blamed Biden administration policies Tuesday for “this untenable crisis.” Abbott said he directed Texas National Guard troops to erect additional barriers with razor wire and Humvees “to stop illegal crossings.”
The Texas governor said he has sent more than 15,000 migrants on buses to New York, Washington and other cities with Democratic mayors. On Christmas Eve, three buses unloaded families in freezing temperatures at Vice President Harris’s residence in Washington. They lined up under blankets in the cold, while aid workers scrambled to find shelter beds to take them.
Abbott’s show of force in El Paso appeared to have limited effect, as the migrants crossing the Rio Grande diverted around the soldiers further downriver to turn themselves in and ask for humanitarian refuge.
U.S. agents made more than 53,000 arrests in November in CBP’s El Paso sector, more than anywhere else along the Mexico border, an influx driven by Cubans and Nicaraguans. The agency’s most recent statement blamed “failing communist regimes in Nicaragua and Cuba” for “contributing to an increased number of migrants attempting to cross the border.”
In a 5-4 order Tuesday, the Supreme Court extended the Title 42 restrictions and scheduled hearings on the case in February. Five justices sided with Republican officials in 19 states, including Texas and Arizona, who sought to maintain the policy.
Texas officials cheered the ruling. “Today, SCOTUS handed Texas and the USA a huge victory by allowing Title 42 to remain in place after Biden illegally tried to terminate this critical policy,” the state’s attorney general, Ken Paxton (R), wrote on Twitter.
The Department of Homeland Security said in a statement following the ruling that Title 42 would remain in effect, and “people should not listen to the lies of smugglers who take advantage of vulnerable migrants, putting lives at risk.”
“We will continue to manage the border, but we do so within the constraints of a decades-old immigration system that everyone agrees is broken,” the statement said.
The court said its ruling does not prevent the Biden administration from taking other actions related to Title 42.
Biden officials have been preparing to announce new measures that would expand the Venezuela parole program for other nations, according to three administration officials with knowledge of the plans who were not authorized to discuss them publicly. Those programs will ask migrants to apply for lawful entry through a mobile app, CBP One, and migrants who attempt to cross illegally will be disqualified.
Tougher measures are also under discussion that would affect asylum seekers who do not seek refuge in Mexico or other countries they transit en route to the U.S. border, according to two people with knowledge of the discussions who were not authorized to speak to reporters.
The Trump administration attempted to enact similar asylum restrictions in 2019 but was blocked in federal court.
Maria Sacchetti, Ann E. Marimow and Robert Barnes contributed to this report.