What is Title 42 and what does its end mean for US border immigration?

Title 42 is making headlines every day, but the arcane law has left many people confused about what exactly it is, why it’s ending on Dec. 21, and what will happen when it goes away. 

Here’s a breakdown to help you sort through all the news — and the noise.

What is Title 42? 

Title 42 is a law currently enforced by the Border Patrol that gives the government the power to stop people entering the US in order to keep diseases out of the country. 

President Donald Trump invoked the law at the beginning of the COVID-19 pandemic, which allowed the US to expel some migrants who had crossed the border illegally. 

During the Trump administration, Title 42 was used indiscriminately to block migrants seeking asylum — which caused many immigrant rights groups to sound the alarm and challenge it in court. 

What has happened with Title 42 under Biden? 

When President Biden took over, he continued to enforce Title 42 with one important change from his predecessor. Biden said Border Patrol agents were only allowed to expel migrants from certain “non-asylum countries” under his direction. That meant migrants seeking asylum from countries like Colombia, Venezuela, Peru, Cuba and Nicaragua who entered the country could still seek asylum and stay while their case is adjudicated — unless they had a criminal record. 

Still, there was never a defined set of countries that qualified as “non-asylum countries.” The Biden administration can add or change the list at any point, which makes enforcing Title 42 complicated for Border Patrol agents. One day, citizens of a country could be classified as asylum seekers and allowed into the US, the next they could be subject to removal under Title 42.

After thousands of migrants fleeing the failing government in Venezuela crossed the border and caused a crisis by overwhelming border towns such as El Paso and Del Rio in Texas, Biden announced in October Venezuela would be added to Title 42 countries and its citizens expelled to Mexico. 

The change was possible because Mexico agreed to accept Venezuelans if the US expelled them, something the country had previously refused to do. Mexico is under no obligation to take in citizens from other countries, further complicating Title 42 enforcement.

The U.S. can also repatriate migrants by flying them home, but it can’t use that method for migrants from Cuba and Venezuela as Washington DC has no diplomatic relationships with Caracas or Havana.

What is happening with Title 42 now? 

Title 42 is supposed to be a health policy — not an immigration policy — and after a lengthy battle on its legality, a federal judge told the Biden administration in November it must end its use of Title 42 by Dec. 21. The Biden administration itself had tried to end Title 42 back in May, but that attempt was blocked by a different federal judge.

“Right now, if you cross into the border, you get sent back,” Landon Hutchens, spokesman for the US Border Patrol in El Paso, told The Post. “There’s not as much consequence.” 

“After [Dec.] 21, if your asylum claim is not accepted, then you get processed for removal — it’s a formal deportation. There’s a lot more risk of being rejected and there’s a lot more consequence after Title 42 [ends],” he said.

Has Title 42 been used before, and why is it controversial?

Title 42 hadn’t been used until Trump invoked it, but a similar law was used in 1929 to ban ships from China and Philippines from entering U.S. ports amid a meningitis outbreak.

Many have called for the policy’s end, saying it’s illegal and that international law guarantees people the right to seek asylum.

But others think it’s necessary, citing the Department of Homeland Security’s warning that  the southern border could see up to 18,000 additional migrants crossing with an intention to stay in the country per day when the measure ends.

Follow The Post’s latest coverage on immigration and Title 42

”If the courts do not intervene and put a halt to the removal of Title 42, it’s going to be total chaos,” Texas governor Greg Abbott said Sunday.

White House press secretary Karine Jean-Pierre insisted last week the Biden administration is “taking the steps to prepare” for an anticipated surge when the restrictive COVID-19 policy ends.

What would the end of Title 42 mean for immigration into the US? 

It’s unclear exactly how many people have been expelled from Title 42 because there have been scores of people who have attempted to enter the country numerous times and been rejected again and again, but the U.S. Border Patrol said made an all-time high of more than 2.3 million arrests at the border in the last fiscal year. Forty percent of people who were expelled from the country were done so under the rules of Title 42.

There’s no replacement for the policy, and while the Biden administration said it is looking into different options, nothing concrete has been proposed. On Dec. 22, the government will go back to using a previous policy, which is called Title 8. 

The mayor of El Paso recently declared a state of emergency in anticipation of the end of Title 42, expecting a surge of migrants he says the city can’t financially support.

“Our asylum seekers are not safe,” mayor Oscar Leeser said. “We have hundreds and hundreds on the street and that’s not the way we treat our people.” The city’s shelters are full, so it has resorted to having to let over 800 people out onto its city streets in the last week.

New York City Mayor Eric Adams echoed the sentiment Monday saying “Every service we provide is going to be impacted by the influx of migrants into our city.”