What to Expect When Title 42 Ends on May 11

Based on today's DHS/State announcement and past statements: Short-term detentions, family releases, and a whole lot of chaos

By Andrew R. Arthur on April 27, 2023

DHS is preparing for an (even greater) flood of migrants crossing the Southwest border illegally once CDC orders directing the expulsion of illegal entrants, issued pursuant to Title 42 of the U.S. Code in response to the Covid-19 pandemic, expire on May 11 (absent Supreme Court action). Based on past statements and today's joint announcement from Secretary of State Antony Blinken and Homeland Security Secretary Alejandro Mayorkas, expect short-term detentions of single adults, mass releases of adults traveling with children in “family units” (FMUs), and a whole lot of chaos — at least until the president and Congress finally get serious about border security.

How Many Migrants? It’s unclear how many migrants will attempt to come in when Title 42 ends, but Southwest border apprehension numbers are already climbing. In March, Border Patrol agents apprehended an average of more than 5,200 illegal entrants per day, a more than 25 percent increase from 4,159 per day in January.

Last year, when the Biden administration first attempted to end Title 42, DHS estimated that up to 18,000 foreign nationals would attempt to enter per day once those orders were lifted, and although I have heard that figure recently discussed, most current estimates are for up to 13,000 daily entries.

That said, acting CBP Commissioner Troy Miller told Congress last week that there are an estimated 660,000 migrants in Mexico. I seriously doubt they’ll be queuing up on the other side.

CBP One Port Appointments. The Biden administration would prefer that those migrants do wait their turns, by reserving interview spots at the ports of entry through the CBP One app.

The problem is that, according to the New York Times on January 25, CBP’s Office of Field Operations (OFO) — which runs the ports — only has the capacity to interview 20,000 would-be illegal migrants per month.

Nearly all migrants who do schedule CBP One app appointments at the ports — more than 99 percent — are allowed into the country, which as I recently explained likely accounts for a massive increase in OFO “encounters” at the Southwest border ports in recent months.

Expansion of Expedited Removal. Aside from CBP One port interviews, the administration’s plans get a little hazy, though DHS has also announced that it will be expanding its use of “expedited removal” for illegal entrants.

Expedited removal is a tool Congress gave the executive branch in 1996 to deal with illegal cross-border entries. It allows DHS to quickly deport aliens who enter between the ports without first obtaining a removal order from an immigration judge.

Well, that’s how expedited removal is supposed to work, at least, because there is one exception that has swallowed that “quick deport” rule in the last decade plus.

The expedited removal provision states that aliens subject to expedited removal who request asylum or claim they will be harmed upon return are to be sent to asylum officers (AOs) for interviews to determine whether they have a “credible fear” of persecution.

Congress defined credible fear as “a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum”.

The reason that the credible fear bar isn’t higher is because Congress intended those AO credible fear interviews to simply be a screening process to determine whether aliens may be eligible for asylum.

Consequently, even aliens with weak, bogus, or otherwise non-meritorious asylum claims can receive “positive credible fear determinations”, as DOJ statistics reveal.

The department has explained that 81 percent of aliens who were subject to expedited removal and claimed a fear of return between FY 2008 and FY 2019 received “positive credible fear determinations” from AOs (an additional 2 percent were found to have a credible fear on review by immigration judges).

Despite that high credible-fear approval rate, however, fewer than 17 percent of border migrants found to have a credible fear in those years were granted asylum by IJs. By contrast, immigration judges ordered 32.5 percent of aliens who had been found to have a credible fear removed in absentia when they subsequently failed to appear in court.

As written, however, the expedited removal statute deters aliens from entering the United States illegally and making weak, bogus, or otherwise non-meritorious asylum claims simply to live and work here indefinitely by mandating that those aliens be detained — from the point they are encountered by DHS to the time they are either granted asylum or removed.

And when DHS complied with that detention mandate, expedited removal did deter such claims. For example, in FY 2006, FY 2007, and FY 2009, just 5 percent of migrants subject to expedited removal claimed a fear of return, as did just 4 percent in FY 2008.

Expedited removal started to break down, however, in December 2009, when then-ICE Director John Morton directed his agency to release aliens who had been placed into removal proceedings after clearing that credible fear bar on “parole”.

As noted, credible fear is not a high bar, and thus can be easily exploited. Therefore, even absent the congressional detention mandate, a positive credible fear finding should not have served as a basis for concluding that the recipient was not a “flight risk”, which is the general standard for releasing aliens who don’t pose a public-safety risk. The statutory mandate simply reiterated that fact.

After that “Morton Directive” was implemented, would-be illegal migrants — and more importantly, their smugglers — realized that making a fear claim was a quick ticket to release into the United States, and the number of such claims soared.

In FY 2010, the year the directive was issued, 7 percent of aliens subject to expedited removal requested asylum or claimed a fear of harm, a figure that more than doubled to 15 percent by FY 2013, before jumping to 25 percent in FY 2015 and then reaching 39 percent in FY 2016 — an almost eight-fold increase in just seven years.

I’ll return to the Morton Directive below, but note that the Biden administration has rarely utilized expedited removal. In FY 2022, just 9.6 percent of the more than 1.152 million illegal migrants apprehended by Border Patrol who were processed under the INA (as opposed to expelled under Title 42) were subject to expedited removal.

By contrast, nearly 311,000 others (27 percent) were served with a Notice to Appear (“NTA”, the charging document in removal proceedings), given a court date in removal proceedings, and released on their own recognizance (“OR”), a process the administration refers to as “NTA/OR”. Such releases were the norm prior to the 1996 amendments, and what Congress tried to remedy with expedited removal.

Expect that as part of its post-Title 42 plan, Biden’s DHS will briefly detain many if not most single adult migrants who enter illegally and subject them to expedited removal.

Those who make credible fear claims (as their smugglers will tell them to do, regardless of whether they have a fear of return), will receive AO interviews within a few days, and the ones who receive positive credible fear determinations will be released — under the 2009 Morton Directive — after they are issued NTAs. Here’s why.

The state of Florida challenged the Biden administration’s Southwest border “non-detention policies” in a case captioned Florida v. U.S. That case was assigned to Judge T. Kent Wetherell II of the U.S. District Court for the Northern District of Florida.

On March 8, Judge Wetherell vacated the administration’s “Parole+ATD” plan, under which illegal migrants at the Southwest border were released into the United States on parole under section 212(d)(5)(A) of the INA and “alternatives to detention” (ATD) without being issued NTAs.

As he alluded to in that opinion, ICE has struggled to actually serve aliens released on Parole+ATD with NTAs after they were released, and the Associated Press revealed on April 26 that some of those aliens won’t receive court dates for a decade.

Judge Wetherell held that the release of aliens on NTA/OR also violated the INA, but that it was not a “discrete ‘agency action’” subject to judicial review, so there was nothing he could do about it.

The administration has already largely abandoned Parole+ATD (only seven aliens apprehended by Border Patrol in March were released under the program), and while the NTA/OR program remains in place, simply releasing all single adult illegal migrants on OR with NTAs would short-circuit the CBP One app port appointment plan. (and create political headaches for the president).

Moreover, releasing aliens under the Morton Directive with an NTA following a positive credible fear determination would be less susceptible to court challenges than NTA/OR releases because: (1) that initiative has already been in place for more than 12 years — Trump wanted to end it, but couldn’t; and (2) it was never challenged in the past and it is a little late to try now.

None of this is to say that no illegal migrants apprehended at the Southwest border will be released on NTA/OR without receiving credible fear interviews. Biden’s expansion of expedited removal will collapse under the weight of a massive migrant surge, and if those migrants aren’t detained for a sufficient period to deter future illegal entrants (two weeks or more), that massive migrant surge will occur.

Family Units and Flores. The Biden administration will likely handle a massive post-Title 42 wave of migrants in family units by simply releasing them with NTAs and court dates. Here’s some history to explain why.

In 1997, the Clinton DOJ entered into a settlement agreement with a class of plaintiffs to govern the conditions of detention and release of migrant children, in a case captioned Flores v. Reno.

Under a poorly reasoned (and legally erroneous) 2015 U.S. district court order interpreting that Flores settlement agreement and a subsequent 2016 Ninth Circuit opinion (that wasn’t much better), DHS must release the children in those FMUs within 20 days.

To avoid “family separation”, DHS has subsequently as a rule released the adults in FMUs within that 20-day timeframe as well, with one notable exception in the spring of 2018 known as “zero tolerance”.

Biden halted FMU detentions in December 2021, despite the fact that, again, the INA mandates such detention subject to the 20-release policy in Flores. Although the administration had reportedly considered some level of family detention, DHS Secretary Alejandro Mayorkas denied migrant families would be detained during today's press conference. So, even if any FMU detentions at the border do occur, expect them to be half-hearted, at best.

As with releases under the Morton Directive, the Trump administration tried to detain illegal migrants in FMUs, without much success (only “Remain in Mexico” — which Biden terminated — halted an FMU surge in 2019), so DHS today likely believes that it is on firm legal ground under Judge Wetherell’s decision in Florida to release those family units with NTAs and immigration court dates.

“Sweeping New Actions”. In an apparent panic with just two weeks to go before Title 42 expires, DHS announced at today's joint DHS-State press conference what the accompanying fact sheet termed “Sweeping New Actions to Manage Regional Migration”. 

Some of those “new actions” are rehashes of old actions (including “expanded access to the CBP One App”, enabling even more would-be illegal migrants to be waved in at the Southwest border ports), while others raise more questions than they answer.

Emblematic of the latter is a promise to “open Regional Processing Centers” (RPCs) “across the western hemisphere to facilitate access to lawful pathways”. 

While the April 27 fact sheet asserts the administration is working with “other countries” to establish RPCs “in key locations throughout the Western Hemisphere to reduce irregular migration and facilitate safe, orderly, humane, and lawful pathways from the Americas”, those countries are unidentified.

And though DHS claims RPCs are already planned for Colombia and Guatemala, no other “key locations” are listed, so it’s not clear where others will be located or even when those two will be in operation.

But that’s not even the vaguest part of what appears to be a rather sweeping proposal, however. That fact sheet continues:

Individuals from the region will be able to make an appointment on their phone to visit the nearest RPC before traveling, receive an interview with immigration specialists, and if eligible, be processed rapidly for lawful pathways to the United States, Canada, and Spain.      

Unexplained is whether those RPCs will be akin to refugee camps where “individuals” can relocate, or mere interview sites, or a hybrid of the two; whether the “immigration specialists” conducting the interviews will be U.S. government employees, representatives of NGOs, or international officials; how “rapidly” interviewees will be “processed”, and what “lawful pathways to the United States” DHS is talking about.

It all sounds, however, like DHS plans on doing credible fear interviews for would-be migrants at those RPCs, and then paroling the ones who receive positive determinations into the United States. If correct, there’s no statutory sanction—whatsoever—for this plan. 

Credible fear only exists in the context of expedited removal, and asylum by statute may only be sought by an “alien who is physically present in the United States or who arrives in the United States”—not by those abroad.

In any event, proposing “sweeping new actions” with time running out on the end of Title 42 is not a recipe for success.

Detention Is the Key. Key to any successful post-Title 42 Southwest border strategy is detention. If aliens entering illegally are quickly released, more will follow. If they’re detained for more than a few days and face the risk of removal, however, many future would-be illegal migrants won’t view paying thousands of dollars to a smuggler for a perilous and possibly unsuccessful trek to the United States as a good investment.

Migrants are smart economic actors, and they already balance out the risks with the potential rewards. That’s why illegal entries have hit record levels after the Biden eliminated nearly all of the risks of illegal entry (except for Title 42) early in his presidency.

Expect any Biden detention plan — especially at the outset — to be perfunctory and half-hearted. On April 26, Voice of America reported that “CBP has capacity to detain 6,000 migrants at the U.S.-Mexico border and plans to add space for 2,500 more.” Fort Bliss in El Paso, Texas, may be added to that mix.

CBP detention won’t work because it’s only used for migrant processing, not detention. It only lasts for, at most, a few days — a speedbump on a weeks-long journey. ICE detains aliens longer-term, and as soon as migrants realize that they will only be detained for two to three days even if they are caught in a CBP processing center, they will come. Not may come — will.

President Biden has already requested that Congress cut the number of ICE detention beds in his FY 2024 budget, at a time that the agency’s detention capacity needs to be greatly expanded. If Biden doesn’t change course, or Congress doesn’t push back, neither is serious about border security.

Post-Title 42, expect some limited expansion of CBP detention and expedited removal at the Southwest border, a few migrant families to be detained, and a whole lot of chaos. The chaos won’t end until both Congress and the administration get serious about border security — and they haven’t gotten serious yet.