Title 42’s the Real Reason Illegal Entries from Central America Are Down

And the reason they will surge once those CDC orders end

By Andrew R. Arthur on February 7, 2023

Quasi-border czar Vice President Kamala Harris announced Monday private-sector financial commitments totaling $950 million for the “Northern Triangle” countries of Central America (El Salvador, Guatemala, and Honduras), in "the latest effort by the administration to encourage private-sector aid for Central America as a way to encourage people to remain in their home countries.” Regardless of the other merits of those investments, they’re not the reason why illegal entries from Central America have declined slightly of late — Title 42 is, and when it ends, illegal entries from the Northern Triangle countries will surge.

Illegal Migration from the Northern Triangle. Until about a decade ago, illegal entrants at the Southwest border were almost exclusively single adults from Mexico, and even then, mostly men coming to the United States to work.

In FY 2007, for example, just fewer than 859,000 migrants were apprehended at the U.S.-Mexico line; more than 800,000 of them were Mexican nationals.

Beginning in FY 2014, however, “other than Mexican” nationals (OTMs) surpassed Mexican nationals (who made up 47.3 percent of the total) among total migrants apprehended at that border, as illegal migration from the Northern Triangle surged. That year, nearly 238,000 migrants from those three Northern Triangle countries were apprehended at the Southwest border, compared to just fewer than 227,000 Mexican nationals.

FY 2014 also saw a surge in unaccompanied alien children (UACs) and adult migrants entering the United States illegally with children in “family units” (FMUs). That fiscal year, agents at the Southwest border apprehended more than 68,500 UACs, and an almost equal number of migrants in family units.

In response to this surge in UACs and FMUs from Central America, the Obama administration rolled out its own multi-pronged strategy in August 2014 to deter those migrants, part of which was an ur-“root causes” plan focused on the Northern Triangle, and part of which increased migrant detention.

Not surprisingly, the presidents of the three Northern Triangle countries wanted the U.S. government to spend less on keeping the UACs out of this country and more on addressing the “root causes of the crisis in their countries” — defined as some combination of violent crime, cartels, and poverty.

Obama went along with that plan, and by December 2015, secured $750 million in aid “to help El Salvador, Guatemala and Honduras fight poverty and gang violence, improve security and reform their governments”.

The push to address those root causes was spearheaded by Obama’s Vice President, Joe Biden. The results were less than overwhelming, and by FY 2019, nationals of the three Northern Triangle countries made up more than 71 percent of all Southwest border apprehensions.

Trump and “Remain in Mexico”. It took a while for the Trump administration to craft policies to address the increasing surge of migrants at the Southwest border, but once it did, it settled on a series of proposals, the most prominent (and successful) of which was the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”.

Under MPP, OTM migrants apprehended at the Southwest border who asked for asylum were sent back across the border to await hearings on their claims at border “port courts”.

MPP was a success, and in an October 2019 assessment of the program DHS determined that it was an “indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system”, particularly as applied to aliens in “family units”. Asylum claims were expedited, and aliens with weak or bogus claims simply returned home.

Title 42. And then came “Title 42”, shorthand for a series of orders issued by CDC beginning in March 2020 that directed the expulsion of all illegal entrants and other inadmissible aliens at the land borders. Those orders were issued in response to the Covid-19 pandemic, pursuant to the federal health laws, Title 42 of the U.S. code — hence the name.

At the outset, those orders were enforced fairly rigorously: Of the nearly 518,500 aliens CBP encountered at the Southwest border (the sum of Border Patrol apprehensions of illegal migrants and aliens deemed inadmissible by CBP officers at the ports) under Trump, more than 452,100 (87 percent) were expelled pursuant to Title 42.

That all began to change after Biden took office in January 2021. Of the more than 1.438 million aliens encountered by CBP at the Southwest border between February and September 2021, fewer than 809,000 (56.2 percent) were expelled under Title 42.

Title 42 expulsions dropped further in FY 2022. Of the nearly 2.4 million CBP encounters at the Southwest border last fiscal year, fewer than 1.08 million (45.3 percent) resulted in expulsion under Title 42.

The reason for that decline in expulsions are many and varied, including the Biden administration’s decision not to expel UACs under Title 42 (they were flown back home, not returned across the border under Trump), and the Mexican government’s increased refusal to accept OTM families.

One group of OTMs that the Mexican government has been willing to take back is adults from the Northern Triangle.

For example, of the more than 2.2 million illegal entrants apprehended by Border Patrol at the Southwest border in FY 2022, more than 520,000 were from the Northern Triangle, and nearly 739,000 others Mexican nationals — more than 1.259 million migrants, or 57 percent of total apprehensions.

They accounted, collectively, for just fewer than 1.013 million of the just more than 1.054 million of the Title 42 expulsions of migrants apprehended by agents at the Southwest border last fiscal year — 96 percent. More than 66 percent of the 520,000-plus migrants from the Northern Triangle were expelled, as were more than 90 percent of the Mexican nationals (Mexico is required to take its own nationals back).

By contrast, more than 947,000 illegal migrants apprehended at the Southwest border in FY 2022 were “other than Northern Triangle” (ONT) non-Mexican nationals, and fewer than 41,500 were expelled under Title 42.

The likelihood of expulsion of Northern Triangle nationals — more so than $950 million in promised aid or any other factor — is the reason why they represent less than 14 percent (87,763) of the more than 633,000 illegal migrants apprehended by Border Patrol agents at the Southwest border in the first three months of FY 2023.

When Title 42 Ends. Which raises the question of what happens when Title 42 ends.

The Biden administration is fighting two separate efforts by the states to force it to continue Title 42 expulsions indefinitely — one in the Fifth Circuit on Administrative Procedure Act grounds (Louisiana v. CDC), and another in the Supreme Court by the same group of states who are seeking to intervene to appeal a D.C. federal district court decision terminating and vacating Title 42 (Arizona v. Mayorkas).

The states have already won at the district court level in Louisiana, with a judge enjoining CDC’s efforts to end Title 42, a decision the administration has appealed.

In Arizona, as noted, a district court judge has directed DHS to stop expelling illegal migrants under Title 42 (in a case the administration technically lost), and the Biden administration is challenging the states’ intervention request. If the administration is successful, the justice’s order would spell the end of Title 42.

The administration has no real plans for what it will do when and if Title 42 ends, however, which is likely why Harris is taking her victory lap now.

One thing the administration could, and should, do is return to Trump’s Remain in Mexico policy. That seems unlikely to occur, however, because one of Biden’s first acts as president was to suspend the program, triggering a challenge by the states of Texas and Missouri in Texas v. Biden.

Biden’s so opposed to MPP that even while Texas was pending, DHS Secretary Alejandro Mayorkas terminated the program (twice). Although the case has been bouncing around the federal courts ever since, the administration has steadfastly refused to return any migrants under Remain in Mexico since August. Biden’s more likely to resign (and take Harris with him) than to return to the program voluntarily.

The other thing that the administration should do is to detain illegal entrants, as the Immigration and Nationality Act (INA) mandates. Biden has been loath to comply with that statutory mandate, instead releasing more than 1.8 million illegal migrants who have been apprehended on his watch.

That catch-and-release regime is the reason why migrants are entering illegally in record numbers now. Aliens enter the country illegally to live and work here, and the administration is increasingly allowing them to do so. The problem is that Biden has broken the border so effectively that detention would be prohibitively expensive (which might have been the president’s plan all along).

Absent some combination of detention and cross-border returns (along the lines of Remain in Mexico), migrant apprehensions at the Southwest border might see some temporary blips, but will remain high, and increasingly so. Hundreds of millions in new investments in Central America won’t resolve the disaster at the Southwest border, because the “root causes” of illegal migration are being nurtured in the White House, not the Northern Triangle.