March 2020 was a wild and fraught time. Americans were just beginning to learn about the seriousness of COVID-19. On May 11, 2020, that learning curve was kicked into high gear when Tom Hanks announced that he had contracted the disease and the NBA indefinitely suspended its season following Utah Jazz center, Rudy Gobert, testing positive.

A full three years after this momentous day, the U.S. government’s Title 42 law, which allowed border agents to quickly expel border crossers and asylum seekers, is set to expire shortly before midnight Thursday. What began as a response to chaos ended with a return to a different type of chaos. Border crossings have already ballooned to over 10,000 per day.

Title 42

In March 2020, the Centers for Disease Control and Prevention, under President Trump, issued a public health order allowing border agents to quickly expel border crossers and asylum seekers. The order, which became known as “Title 42,” was grounded in 42 U.S.C. § 265, a U.S. statute allowing the government to suspend entry into the country to prevent the spread of communicable diseases.

Title 42’s primary effect was to change how border-crossers and asylum-seekers were processed at the border. In normal times, migrants are held in detention centers while their claims are processed. In their public health order, the CDC identified these mass gatherings as a “danger to the public health” because the migrants were held “in close proximity to one another, for hours or days” before their status was determined.

Under Title 42, the government was allowed to bypass the detention centers and expel migrants without determining their asylum status. Border agents were ordered to remove all migrants from the U.S. and return them to the country from where they had entered, typically Mexico. This return process was to be done “as rapidly as possible, with as little time spent in congregate settings.”

Title 42 was directly tied to the federal government’s COVID-19 public health emergency. But as the pandemic slowly faded in its potency, President Biden allowed the public health emergency to end. And with its end, Title 42 can no longer be justified.

Border Crossings Surge

Experts had predicted a surge in migrants at the border. President Biden said that the border would be “chaotic for a while.” They were right.

Even before Title 42 was set to end, illegal migrant apprehensions had surpassed 10,000 per day. Processing facilities were already at 200% capacity the week before the law was set to expire. Not only did the lift on the ban overwhelm an already burdened border patrol, but local communities struggled to deal with the influx.

In the border town of El Paso, Texas, shelters were “maxed out” with migrants. In San Diego, California, migrants were stuck in even more dire straits. Two border walls separate San Diego from Tijuana, Mexico. Hundreds of migrants, including small children, were stuck between the two. While they have been provided sandwiches through gaps, the conditions have unsurprisingly been described as “squalid.” On the Mexican side of the border, migrants have prepared for a dangerous Rio Grande River crossing by purchasing floats.

The President’s Response

The increased crossings come at a bad time for U.S. border agents. In response, the Biden administration is taking action to process the influx of migrants. Additional personnel and funds will be given to help speed up the processing of border crossers. At the same time, the administration is stiffening penalties for those who cross illegally. These migrants may be deported and barred from returning to the U.S. for five years.

The administration is also taking a host of other actions to try to cope with the influx:

• Opening additional processing centers
• Improving their scheduling platform
• Continuing to admit 30,000 migrants per month from Venezuela, Cuba, Haiti, and Nicaragua, as long as certain conditions are met
• Tracking migrants through a new program called Family Expedited Removal Management
• Deploying military troops to the border

States Take Their Own Measures

States and cities have responded to the expected chaos in a variety of ways.

In Florida, Republican Governor Ron DeSantis launched a new migrant relocation program just days before Title 42 was set to end. Under this program, Florida will have an additional $12 million to relocate illegal migrants anywhere in the country. Florida will also make it tougher for immigrants to obtain a government-issued ID and invalidate out-of-state IDs for illegal immigrants. There will also be additional penalties for businesses who employ these immigrants.

In Texas, Republican Governor Greg Abbott has deployed National Guard soldiers along the border. The “elite” soldiers have been “specifically trained for one thing,” said Abbott in a Tweet. They will “identify areas illegal immigrants are trying to cross the border,” “fill that gap,” and “repel” the migrants.

But the response hasn’t been limited to red states. New York City Mayor Eric Adams has issued an emergency executive order to deal with the “unprecedented humanitarian crisis” as it seeks “to meet the immediate needs of the asylum seekers.” Adams has stated that “there is no room in New York” for additional migrants. He has also called on the Biden administration “to do its job” at the border. Adams’s executive order will suspend New York City’s right-to-shelter rules, meaning asylum seekers will no longer be guaranteed shelter. Other mayors in places like San Diego, Chicago, and Yuma are also taking action to prepare for the end of Title 42.

While people on different sides of the spectrum at least some to agree that the immigration system is broken, long-term solutions have been sadly lacking across parties.

Related Resources

• DeSantis’s Controversial Migrant Relocation Bill Passes Into Law (FindLaw’s Law and Daily Life Blog)
• Immigration Law for Unaccompanied Minor Children at the Border (FindLaw’s Learn About the Law)
• Immigration Law (FindLaw’s Learn About the Law)

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