Biden Administration Continues Title 42 Order for Illegal Migrants

But it may not be the boon to immigration enforcement you might think it is

By Andrew R. Arthur on February 8, 2022

CBS News reported on February 4 that DHS will continue to use pandemic-related orders issued by the Centers for Disease Control under Title 42 of the U.S. Code to expel illegal migrants from the United States. As Title 42 is one of the few Biden administration efforts to control the unmitigated disaster at the Southwest border, that may seem to be good news, but such a conclusion might be only partially correct.

Title 42 Expulsions Are on the Decline. Emergency orders under Title 42 have allowed CBP to quickly expel aliens who have crossed the border illegally and arriving aliens without proper entry documents at the ports since late March 2020, and at the beginning were extremely effective. Of the just over 17,100 aliens encountered by CBP at the Southwest border in April 2020, nearly 91 percent were expelled under that first CDC order.

The percentage of illegal migrants apprehended at the Southwest border expelled by CBP under Title 42 fell to 84.25 percent by December 2020, however, and to 82 percent a month later — the first (partial) month of the Biden administration.

In July 2021, when CBP encounters at the Southwest border reached nearly 213,593, the percentage of illegal migrants expelled under Title 42 fell to just over 45 percent. By December 2021, fewer than 44 percent of illegal migrants apprehended by CBP at the Southwest border were expelled under Title 42. The rest were processed under the “traditional” channel — the Immigration and Nationality Act (INA).

Of the 100,251 illegal migrants encountered by CBP at the Southwest border in December (the 56 percent-plus who were processed under the INA that month), just fewer than 6,900 were removed under the INA. More than 55,000 — or more than 55 percent — were released into the United States, although even that total is likely low.

That’s because nearly 12,000 of the illegal migrants CBP encountered at the Southwest border in December were unaccompanied alien children (UACs), and they would not count as border releases in the court filings that are the source of that 55,000-plus figure.

UACs from “non-contiguous countries” (every country other than Canada and Mexico) have their own special set of rules, requiring the vast majority to be released to “sponsors” in the United States (most of whom themselves are aliens here illegally). More than 84 percent of the UACs apprehended by CBP at the Southwest border in December were — no surprise — “other than” Mexican or Canadian nationals.

For all other illegal migrants, however, as I have repeatedly explained, section 235(b) of the INA mandates detention, at least until those migrants are granted immigration relief or protection or are removed from the United States. As the statistics above show, however, most were released instead.

Rationale Behind the Title 42 Order. This brings me back to the latest CDC Title 42 order. One rationale for expelling illegal migrants under that order is to limit the amount of time that they spend in what are termed “congregate settings”, that is Border Patrol stations and processing facilities, ports of entry, and ICE detention.

The reasoning behind this is likely evident to a U.S. population that has lived under their own CDC restrictions for nearly two years, but to restate the obvious, CDC wants to get Covid-19-positive illegal migrants out of congregate CBP settings as quickly as possible to prevent them from spreading the novel coronavirus to each other and to CBP agents and officers.

The problem is that expulsion of most third-country nationals requires that Mexico agree to take them back, and it has been increasingly less willing to do so. Of course, it is doubtful the Biden administration has been trying to force the Mexican government to accept the return of those migrants as vigorously as the Trump administration did.

The Flip Side of Title 42. The Covid-19 pandemic (and more specifically the Title 42 orders issued in response thereto) would give the Biden administration the perfect excuse to release tens of thousands of illegal migrants — whom by law it is supposed to be detaining — into the United States.

If those migrants were detained, the Biden administration could argue (and likely would, if anyone called them on it), that they would have to be placed into congregate settings, increasing the likelihood of them spreading Covid-19 to one another and to DHS officers, which the Title 42 order seeks to avoid.

What the Biden administration has never explained is why, as the latest Title 42 order states, most aliens are not tested for Covid-19 until they are released. Note that such testing is done by “local governments and non-governmental organizations” — that is, entities with no authority to detain for quarantine aliens who test positive — and therefore does little to “stop the spread” here.

If the administration were hiding behind the CDC’s Title 42 order to release aliens that it has shown little interest in detaining, the timing of that testing makes sense. Simply put, unless those migrants are symptomatic (in which case they are tested in custody), DHS could argue it is unaware any are infected and that it needs to release them before they, too, become sick.

CDC argues that the lack of testing is an issue of resources and space constraints, but given how quickly Covid testing works these days, there seems to be something slightly questionable about that.

Will Title 42 Be Lifted When DHS Gives Itself Power to Release All Illegal Migrants? All that said, I am willing to give the administration the benefit of the doubt and assume that the current Title 42 extension is based on the best epidemiological and public-health guidance.

But there is a cynical part me of that suspects otherwise, and if that inner skeptic is right, I have suspicions about when CDC’s latest Title 42 order will be lifted.

Back in August, DHS and DOJ published a proposed rule that would (among other things) allow DHS to release on what is known as “parole” every illegal migrant for whom it lacks detention space. In its response to that rule, the Center explained that DHS lacks the authority to parole those aliens, and the Fifth Circuit recently reached the same conclusion.

As noted, however, DHS nonetheless continues to release tens of thousands of illegal migrants every month — likely implicitly relying on the CDC’s Title 42 guidance as explained above.

A final rule in response to that proposal has yet to be issued, but I will not exactly be shocked if it is published at about the same point that CDC revokes the Title 42 order.

Title 42 May Not Be an Unmitigated Boon to Border Enforcement. The Biden administration has a significant transparency problem when it comes to immigration generally and its actions at the border in particular. Republicans are in the minority in the House and Senate, and therefore lack the power to force the White House to explain itself, but some information has nonetheless seeped out of DHS.

There is no clear public linkage between CDC’s Title 42 orders and the Biden administration’s (legally questionable, at best) illegal-migrant release policies.

If it were called to answer for those policies, though, DHS would likely assert that (1) it would expel nearly every alien encountered by CBP under Title 42 if it could but (2) since it can’t expel tens of thousands of them, it must release them, in the spirit of the CDC order to prevent the spread of Covid-19 in congregate settings like detention.

For those who favor border security, CDC’s extension of its latest Title 42 order is likely good news. Don’t be surprised, however, if it is not the unmitigated boon to immigration enforcement that it appears to be.