The U.S. law was invoked by former President Donald Trump at the beginning of the COVID-19 pandemic, and it has continued under President Joe Biden’s administration, despite efforts to end it sooner. The policy has been criticized for being used to deny migrants the right to seek asylum.
The law gave the U.S. authority to take emergency measures to keep highly transmissible diseases out of the country. Several states sued the Biden administration after it tried to end the policy. But after the global health emergency prompted by COVID-19 was suspended, the U.S. Supreme Court canceled arguments on the case. Now, Title 42 is set to end.
The immigration policy used at the border before the pandemic, called Title 8, will replace Title 42. It allows for illegal immigration to be punishable by fines and jail time. First time offenses could result in a $50–$250 fine and/or six months of jail time. Any offenses after that could result in twice the amount in fines and up to two years in jail.
Parker Sheffy, a University of Houston Law Center professor, said Title 42 was invoked by Trump’s administration to get certain things done at the border that he couldn’t get done with actual immigration policy.
“Their objectives were to limit immigration whether it’s lawful or unlawful immigration in general,” he said. “Title 42 provided a safety hatch of sorts." Under the policy, immigration laws didn’t matter, Sheffy noted, “because Title 42 provided this blanket prohibition of entry of foreign migrants in this name and for the sake of a public health emergency.”
With Title 42 ending, the Biden administration issued changes to asylum processing rules. Under the changes, individuals seeking asylum must go to a port of entry; otherwise, they will be barred from seeking asylum altogether. Whether they enter lawfully or not, people are usually allowed to apply for asylum within a certain period of time. Under Biden’s changes, this will no longer be the case.
“So, access to asylum is being severely curtailed." – Parker Sheffy, professortweet this
The U.S. Customs and Border Protection agency started a new phone application for migrants to schedule meetings at formal ports of entry to undergo initial screening. Individuals who fail to use the app and enter through another country will be ineligible for asylum, Sheffy explained. There will be exceptions for people who can prove they can’t use the app, but Sheffy isn't sure how this will play out on the ground. “So, access to asylum is being severely curtailed,” he said.
Biden’s administration is also introducing some promising immigration reforms with these changes, according to the professor. For example, certain people from El Salvador, Guatemala, Honduras and Columbia have been able to seek asylum in the U.S. under family reunification programs. However, the process can take years and they have to stay in their home country while it plays out. Biden’s administration is introducing a change to these programs to allow people to stay in the U.S. as their request for asylum is being processed.
“While asylum is being curtailed, other processes for lawful entry have been introduced that should both decrease the need or perceived need to pursue asylum and make that treacherous journey and cross unlawfully,” Sheffy said.
Not everyone sees it this way.
In a statement sent out by his office Wednesday, Texas Attorney General Ken Paxton said ending Title 42 was the Biden administration’s effort to maximize illegal immigration in the country, adding that it will “crush Texas with the costs, crime, and upheaval.”
“The brutal reality of Biden’s immigration agenda should shock the conscience of every American,” Paxton said. “His policies allow monstrous gang members, terrorists, human traffickers, drug dealers, and violent criminals into our country and demonstrate that the President is willing to sacrifice American lives for his open-borders agenda.”
Sheffy disagrees. Despite what some politicians might suggest, he said, the number of annual migrant encounters at the border has stayed the same over the last few decades. "The push factors or reasons that individuals are coming have changed," he said. "But with respect to the idea that any one president's policies are inviting this surge is just not backed up by the fact that this has been going on for 40 years with similar numbers."
“The brutal reality of Biden’s immigration agenda should shock the conscience of every American." – Attorney General Ken Paxtontweet this
U.S. Rep. Jasmine Crockett, a Dallas Democrat, spoke about the expiration of Title 42 on the House floor Wednesday, saying that conversations about the policy and immigration as a whole have been inhumane.
“As a child, I was taught songs like 'America the Beautiful,' but today I honestly say that beauty really must be in the eye of the beholder because the inhumanity that is playing out around migrants is far from beautiful,” Crockett said.
The freshman congresswoman wants Congress to pass humane, sustainable, transparent and bipartisan immigration reform and says that House and Senate Democrats have tried to get this done. “For years, House and Senate Democrats have worked to pass immigration reform with little to no support from our Republican colleagues,” Crockett said.
“I’m left asking ‘Is this what America the beautiful looks like?’" she continued. "Republicans are constantly fanning the flames of hate instead of offering help to a country that is craving leadership and less lies.”
In Crockett's view, Republicans have decided that immigrants are great political pawns. “The problem is, we aren’t playing chess,” she said. “This is real life with radical rhetoric with real world consequences getting people killed.”
Just this weekend, a man in Brownsville, Texas, rammed his truck into a crowd of 20 migrants sitting at a bus stop, killing eight people, Crockett added. It’s still uncertain whether the incident was intentional, according to The New York Times.
“We’ve got to do better,” she said. “America really needs to be beautiful.”