This story has been updated. An earlier version was published in November.
Authorities say they’re seeing a significant increase in border crossings around El Paso, Texas, a week before the scheduled end of a policy officials have been relying on to kick many migrants out of the US.
It’s been nearly a month since a federal judge ruled that the controversial Trump-era policy must end, something that officials predicted earlier this year would lead to a new influx of migrants trying to cross into the United States. That’s not what’s happening in El Paso – at least not yet. The judge’s order ending Title 42 isn’t scheduled to go into effect until December 21.
But dramatic images of large groups of migrants crossing the border in West Texas in recent days and statements from officials on the ground are adding further fuel to debate over Title 42 and how authorities will respond to expected increases in border crossings if the public health restrictions are lifted.
“Look at the vast numbers increased in the past couple of weeks, especially the last three to four days,” El Paso Deputy City Manager Mario D’Agostino told the city council there on Monday. “Those numbers are unsustainable, and that’s with Title 42 in place. So we can only imagine what that Title 42 lift is going to do on top of everything else.”
Here’s a look at some of the key questions and answers about what’s happening on the ground, Title 42’s history and what could happen next.
More than 2,400 migrants crossed into the United States near El Paso each day over the weekend, according to a senior Border Patrol official, marking what he described as a “major surge in illegal crossings” in the region.
At this point there isn’t any known connection between the rise in crossings and the looming end of Title 42. But officials in the border city have been sharing concerns about the policy’s court-ordered termination as they discuss the recent increases in migrants crossing the border.
“We’re talking about Title 42 being lifted and what that would do here in the community. We have to be cognizant with the fact that it’s already here,” D’Agostino said Monday.
El Paso officials say they’re worried what they’re seeing now at the border will only intensify once the policy is lifted.
In the early days of the coronavirus pandemic, the US Centers for Disease Control and Prevention issued a public health order that officials said aimed to stop the spread of Covid-19. The order allowed authorities to swiftly expel migrants at US land borders. The policy is widely known as Title 42, for the portion of US code that allowed the CDC director to issue it.
In a ruling last month, US District Judge Emmet Sullivan ordered the government to end the “arbitrary and capricious” policy. He granted a request for a five-week reprieve, setting a deadline of December 21.
But pending appeals could impact that timeline.
The governors of 19 GOP-led states have asked a federal appeals court to rule by Friday on an emergency motion to block the lower court’s order lifting Title 42. If the appeals court sides with them, the policy would remain in place while the case proceeds.
The Biden administration is also appealing Sullivan’s ruling, but has said it’s continuing with its preparations to end Title 42 expulsions as ordered on December 21.
The border restrictions were controversial from the moment the Trump administration announced them. Immigrant rights advocates argued officials were using public health as a pretext to keep as many immigrants out of the country as possible. Public health experts also slammed the policy, saying it wasn’t justified by the circumstances.
In April, the policy became a political lightning rod and a topic of fierce debate as the Biden administration announced plans to end it. But ultimately, the policy remained in place after a federal judge in Louisiana blocked the administration’s plans to roll it back.
And the national political conversation moved on to other targets. Immigration and border enforcement remained big points of contention, and a major theme that many Republicans emphasized in midterm election campaigns. But Title 42 was no longer the focus of debate.
The recent federal court ruling placed the issue front and center once again.
Lee Gelernt, the American Civil Liberties Union attorney who argued the case before Sullivan, praised the ruling.
“Title 42 was never about public health, and this ruling finally ends the charade of using Title 42 to bar desperate asylum seekers from even getting a hearing,” he said in a statement.
Texas Gov. Greg Abbott and other Republicans were swift to condemn the judge’s decision.
“This will further signal to cartels, human smugglers, & illegal immigrants that the border is wide open—inciting more violence & lawlessness. Disastrous,” Abbott wrote on Twitter.
Migrants encountered under Title 42 are either expelled to their home countries or into Mexico. Under Title 42, authorities have expelled migrants at the US-Mexico border nearly 2.5 million times in less than three years, according to US Customs and Border Protection data. And the vast majority of those expulsions – more than 80% – have occurred under the Biden administration.
Those who support Title 42 point to border arrests as they argue how essential the pandemic policy has been for blocking illegal immigration. Those who oppose the policy argue official statistics about encounters at the border inflate the severity of the situation, because the data include people crossing the border multiple times. They argue Title 42 has actually caused more border crossings.
There’s no doubt Title 42 has become a policy officials frequently turn to at the border, but it’s not the only way migrants’ cases are handled. A CNN analysis of 10 months of data earlier this year found that the public health restrictions were applied in about 50% of migrant encounters at the southwest border.
If Title 42 is lifted, the way migrants are processed at the border would go back to how it was before 2020. Under that system, migrants are either removed from the country, detained or released into the US while their cases make their way through immigration court.
And officials continue to predict that lifting Title 42 is likely to spur a significant increase in the number of migrants trying to cross into the US.
Last month the Department of Homeland Security was projecting between 9,000 to 14,000 migrants may attempt to cross the US southern border daily when Title 42 ends, more than double the current number of people crossing, according to a source familiar with the projections.
Earlier this year, the policy drew attention when authorities at first were using it to turn away Ukrainians at the border, then largely started granting exceptions that allowed thousands of Ukrainians seeking refuge to cross.
Advocates argued a racist double standard was at play as many migrants from Central America and Haiti continued to be turned back under the policy. Federal officials denied that accusation and said each exemption is granted on a case-by-case basis.
In August, CNN’s analysis found that migrants from outside Mexico and the Northern Triangle countries of Guatemala, Honduras and El Salvador were far less likely to be subjected to Title 42.
But for some migrants, that’s starting to change. Nearly 6,000 Venezuelan migrants were expelled under Title 42 in October after the Biden administration announced a new policy toward migrants from the South American nation.
Advocates say for many of those who are expelled, the situation is dire.
Since Biden took office, Human Rights First says it’s identified nearly 10,000 cases of kidnapping, torture, rape or other violent attacks on people blocked or expelled to Mexico under Title 42.
The Biden administration has sent mixed messages on Title 42. It has criticized Title 42 and vowed to end its use at the border, but more recently came to rely on the policy.
Many advocates expected President Biden would lift the order as soon as he took office, given his campaign promises to build a more humane immigration system. Instead, his administration extended the policy more than a year into his presidency and defended it for months in court.
In April 2022, the administration announced plans to end the policy, stating that it was no longer necessary given “current public health conditions and an increased availability of tools to fight Covid-19.”
After the federal judge in Louisiana blocked that effort, the Justice Department vowed to appeal.
But in October, facing mounting political pressure over a marked increase in migrants crossing the border, the administration announced it was expanding the use of Title 42 to expel Venezuelans into Mexico.
Now once again officials say they’re preparing for the policy to end. But they’re also appealing the federal judge’s recent ruling, arguing that public health restrictions limiting migration are legal.
Whatever happens next is sure to face intense political scrutiny.
Already the judge’s decision and the increasing number of migrants crossing in El Paso are intensifying debate over the border once again.