Title 8 in the immigration spotlight ahead of Title 42’s expiration

Title 42, a pandemic-era policy used to block asylum seekers at the border, expires Thursday, returning migrant processing to the system used under Title 8 that allows for expedited removals.

Here’s what to know about the end of Title 42 and the refocus on Title 8.

Why is Title 42 going away?

Title 42 was first implemented under the Trump administration when the COVID-19 pandemic first hit the U.S., but it’s been used widely by the Biden administration.

Under the policy, border officials can quickly expel asylum-seeking migrants they encounter at the border, without processing their asylum claims following regular rules for processing and asylum. According to Customs and Border Patrol data, more than 2.5 million migrants have been turned away under Title 42 since 2020. 

President Biden faced pressure when he took office to rescind the controversial order. When he did so, his effort faced legal challenges last year. 

Since Title 42 was cast by the Trump team as a health order — allowing the U.S. to turn away migrants purportedly to stem the spread of the COVID-19 virus — it is now set to be lifted on May 11 with the end of the COVID-19 public health national emergency declaration.

What is Title 8?

Title 8 is the section of U.S. code that lays out processing rules, including allowing for expedited deportations of migrants.

Both titles of authority allow quick processing (either a summary expulsion under Title 42, or an expedited removal under Title 8) with the difference being that expedited removals create a paper trail and require screening for asylum claims.

Biden administration officials say the stiffer penalties of Title 8 removals, which carry a five-year bar on entering the United States, paired with better avenues to seek legal pathways to enter the U.S. will relieve pressure at the border.  

“Once the Title 42 order is no longer in place, DHS will process individuals encountered at the border without proper travel documents using its longstanding Title 8 authorities, which provide for meaningful consequences, including barring individuals who are removed from re-entry for five years,” said DHS Secretary Alejandro Mayorkas in December. 

“These consequences include placing individuals in expedited removal, which allows DHS to quickly repatriate individuals who do not have a legal basis to stay in the United States.”

What happens when Title 42 lifts?

Many have sounded alarms about what could happen at the border once Title 42 expires — both about an expected surge of migrants to the border and the likely increase in the number of migrants detained.

“The lifting of the Title 42 order does not mean the border is open. When the Title 42 order lifts at 11:59 PM on May 11, the United States will return to using Title 8 immigration authorities to expeditiously process and remove individuals who arrive at the U.S. border unlawfully,” the DHS said in a release last month.

According to DHS, a return to regular Title 8 processing will cut down on recidivism – repeat border crossings by the same individual. Under Title 42, recidivism increased substantially, as summary expulsions generated no legal consequences.

Prosecutors can file criminal charges against individuals processed more than once under Title 8, and the Biden administration has also vowed to impose severe immigration penalties on repeat offenders.

What is the White House saying?

Biden has previously stressed that migrants should “not just show up at the border,” but should instead “stay where you are and apply legally from there.” 

DHS said last month that it will open a handful of regional processing centers, including in Colombia and Guatemala, where migrants can apply for lawful pathways to enter the U.S. The Biden administration has also recently rolled out a program that allows those from Haiti, Cuba, Venezuela and Nicaragua to apply online for temporary entrance to the U.S., but they must first secure a U.S.-based financial sponsor.  

“Importantly, these measures do not supplant the need for congressional action. Only Congress can provide the reforms and resources necessary to fully manage the regional migration challenge,” DHS said in announcing changes, adding that Biden “has continually called on Congress to pass legislation to update and reform our outdated immigration system.”

The president earlier this month announced plans to send 1,500 active-duty troops to the border in an effort to help border agents and ease the strain placed on the immigration system — as governors and others in states on the southern border sound alarms about the expected migrant surge.  

Sens. Kyrsten Sinema (I-Ariz.) and Thom Tillis (R-N.C.) this month introduced a bipartisan bill to extend the president’s authority to expel asylum-seeking migrants without hearing their asylum claims.

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