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What is Title 42? Explaining the contentious Trump-era border policy.

A migrant-led protest over Title 42 on Nov. 8 in Nogales, Mexico. The emergency public health order has allowed U.S. agents to rapidly “expel” most border crossers since March 2020. (Caitlin O'hara/Reuters)
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Even as he promised a more compassionate approach to immigration, President Biden has kept in place one of the most contentious policies of the Trump era, known as Title 42. His administration plans to phase it out in May, which would be a win for liberal immigration activists, a number of Democrats in Congress and even some critics of the policy in Biden’s own administration.

But that move may get tangled up in legal wrangling: A group of Republican attorneys general sued the Biden administration to keep the policy in place, and a federal judge in Louisiana agreed temporarily to do that.

Lifting the policy will likely swell the border with migrants who view it as easier to come to the United States and claim asylum. That’s putting Democrats up for reelection this November in a tough spot, and at odds with the president. Here’s more about Title 42 and its possible political consequences

What is Title 42?

It’s a federal health order from the Centers for Disease Control and Prevention that cites the pandemic as a public health reason to bar people from entering the United States.

That allows the government to send migrants back to their home countries immediately upon apprehending them.

Previously, these migrants would be held in detention facilities and charged with immigration offenses. Many hoped to request asylum proceedings to plead their case that they be allowed to stay. And given the backlog of asylum cases, they could be allowed to live in the country legally for several years while they waited for their case to go through the courts.

With Title 42, migrants get removed from the country after they are caught by Border Patrol, and they can’t request asylum proceedings.

President Donald Trump implemented it in March 2020, as the pandemic was just taking off. The Biden administration has kept it in place, although some immigration and civil rights activists have chipped away at it in court. Border crossings — and apprehensions — went from their nadir around the time Title 42 was implemented to some of the highest levels ever. (Crossings rose partly because, under Title 42, migrants are expelled without a mark on their record, so many tried crossing multiple times.)

After the Biden administration announced its plans, more than 20 states sued to keep Title 42 in place, arguing that the administration was already lifting it in some cases before its stated May 23 deadline. A judge in Louisiana temporarily blocked the administration from lifting Title 42; it remains to be seen what will happen at the May 23 deadline.

Why is it controversial?

A few reasons.

Activists argue this is an inhumane way to treat people seeking refuge. American law says people who come to the border to seek asylum should be allowed to. And they argue it violates the international principle of not sending people back to countries where they might be persecuted.

Also, migrants’ country of origin may not be their current home. Last summer, during a surge of Haitian migrants at the border (for a variety of reasons, including the pandemic, political upheaval and a worsening global economy), the Biden administration used Title 42 to send many back to Haiti. But for a number of these migrants, who had been living and working in Brazil or Chile or other South American countries for years, home wasn’t in Haiti anymore.

In September, the U.S. special envoy to Haiti resigned in protest over this practice. “I will not be associated with the United States’ inhumane, counterproductive decision to deport thousands of Haitian refugees and illegal immigrants to Haiti, a country where American officials are confined to secure compounds because of the dangers posed by armed gangs in control of daily life,” Daniel Foote wrote.

The American Civil Liberties Union sued the Biden administration, and a federal judge ruled that the government couldn’t send entire families back home under this edict, limiting its impact mostly to single adults trying to cross the border. In March, a federal court said the Biden administration could keep using Title 42 but couldn’t send people back to countries where they would face persecution, “citing ‘stomach-churning evidence’ that the U.S. government has delivered people to places where they face rape, torture and even death,” report The Washington Post’s Maria Sacchetti and Nick Miroff.

Why did the Biden administration decide to keep this in place for so long?

It framed Title 42 as temporary. But as recently as January, it argued in court that the policy is necessary to protect public health and stop the coronavirus from spreading along the border.

That argument became less tenable as vaccines became easier to come by, and coronavirus cases dropped. “At this point, it’s become nearly impossible to justify Title 42,” said Jessica Bolter of the nonpartisan Migration Policy Institute.

Left unspoken is that lifting Title 42 will probably create chaos at the border.

It could implicitly encourage migrants to come and seek asylum.

“Intelligence suggests that there will be a lot more people migrating on the border,” Attorney General Merrick Garland told Congress in April, when asked about the possible effects of lifting Title 42.

Biden has struggled politically with the border. Attempted crossings spiked as he took office, under the belief that he would be more lenient to migrants than Trump. As a result, immigration was one of the dark spots in Biden’s polling early on in his administration. We’ve already seen some troubling images arise from crowded border situations, like that of a White Border Patrol agent on horseback trying to catch Haitian men. “I was horrified by what I saw,” Homeland Security Secretary Alejandro Mayorkas said at the time.

Now, as they gear up for the midterm elections, Republicans regularly describe the border as out of control — yet another example of how Biden promised to restore normalcy to the nation but delivered dysfunction.

Bolter worries that an increase in border crossings could send an influx of migrants to communities along the U.S.-Mexico border that aren’t prepared to handle them.

What are the political implications of ending Title 42?

Making it easier for migrants to cross the border is not a popular move on Capitol Hill. Some Senate Democrats up for re-election this year have joined Republicans in expressing concern about the policy.

“The Biden administration was wrong to set an end date for Title 42 without a comprehensive plan in place,” Sen. Mark Kelly (D-Ariz.), who faces a difficult race for his seat this fall, said in a statement. He and several other Democrats have introduced a bipartisan bill to delay ending Title 42 restrictions.

“I think this is the wrong time, and I haven’t seen a plan that gives me comfort,” Sen. Raphael Warnock (D-Ga.), perhaps the most vulnerable Senate Democrat right now, told reporters.

These Democrats are at odds with immigration activists in their party — and, arguably, with the reality that Title 42 was a pandemic-era policy that has become difficult for the Biden administration to justify keeping in place, as other restrictions lift.

Meanwhile, Republicans have jumped at the opportunity to appear strong on border politics. Texas Gov. Greg Abbott (R) has used the ending of Title 42 as a reason to implement state inspections of trucks at the border (which already undergo federal inspections), creating miles-long backlogs for food and other goods headed into the U.S.

Republicans in the Senate have blocked a covid-funding relief bill as they try to get a vote on reinstating Title 42. They’re hoping that Democrats facing tough races next November join them in demanding a vote; it’s not clear these Democrats will.

This has been updated.

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