Title 42 Failed. It Should Not Be Extended in Any Form.

David J. Bier

With the sunsetting of the public health emergency this week, Border Patrol will lose its ability to expel some immigrants at the border under Title 42. Under Title 42, Border Patrol could quickly remove someone from the United States, sending them back to Mexico or, in some cases, their home country without allowing them the ability to request asylum in the United States. President Biden’s plan to replace Title 42 involves more legal immigration and an asylum ban for those who cross illegally paired with deportations to Mexico for eight nationalities.

Title 42 has failed on its own terms. Crossings have increased. Illegal crossings have increased. Evasions of Border Patrol have increased. The outcomes speak for themselves. Unfortunately, the president’s plan now involves largely recreating those failed conditions by banning asylum and deporting more people to Mexico where they will have little option but to attempt to cross illegally again.

How important was Title 42?

From March 2020 to March 2022, the United States Border Patrol carried out 2.7 million expulsions—about half the time the person being expelled was previously expelled. In March 2022, the Border Patrol expelled people 85,466 times at the U.S.-Mexico border. About half of all the people arrested at the U.S.-Mexico border for crossing illegally in March were already not being processed under Title 42 but rather under Title 8 (immigration law). This is higher than the 23 percent in January but lower than the 65 percent in May 21 or the 91 percent in October 2020. This means that ending Title 42 will have few effects on the group not already being expelled.

Adults traveling without children from Mexico and the Northern Triangle of Central America (El Salvador, Guatemala, and Honduras) have accounted for 83 percent of all expulsions under Title 42 from March 2020 to March 2022; 9 percent were families from those countries; 5 percent were “single adults” from other countries; and 2 percent were families from other countries. These proportions were quite like those in the month of March 2022. The United States has deported about 300,000 parents with children and 2.4 million adults without children. Biden plans to try to continue to remove those being expelled to Mexico after Title 42 on May 11 if subject to the asylum ban.

A migrant’s probability of being expelled is highly dependent on the person’s country of origin and demographic group. From March 2020 to March 2023, 93 percent of adults traveling without children from the Northern Triangle and Mexico were expelled, compared to 52 percent of families from those countries, 11 percent of other single adults, and 7 percent of other families. Mexico has always agreed to accept back people from the Northern Triangle and Mexico, but in January, it agreed to accept Cubans, Haitians, Nicaraguans, and Venezuelans, which has led to higher expulsions for those countries but also far fewer came during those months.

This means that Title 42 is mainly a policy that targets single adults—adults without children—from the Northern Triangle and Mexico who are expelled at a rate of 93 percent. Yet despite this high likelihood of being expelled, if caught, the number of arrests for this demographic has increased threefold from the time before Title 42 was used. In March 2023, single adults from the targeted countries accounted for 49 percent of all Border Patrol arrests. There were nearly as many arrests by this group (80,335) in March 2023 as there were for all groups in all of March 2019 (92,833), which was considered high at the time.

Title 42 does not deter single adults from Mexico and the Northern Triangle from crossing the border. Further evidence is that Title 42 has led to significant increase in recidivism—that is, the share of immigrants who were previously arrested the same year. The recidivism rate surged from about 20 percent in 2019 to 49 percent in 2022—meaning nearly half of single adults arrested under Title 42 from Mexico and the Northern Triangle were previously arrested under this policy. The remain in Mexico policy—which also involved sending people back to Mexico—also led to an increase in recidivism prior to the Title 42 policy.

The primary reason that Title 42 is not a good deterrent for this population is that they are not likely to be seeking to apply for asylum but rather to enter the country without being arrested, so that they can find jobs. Previously, single adults were likely to be incarcerated for an extended period after their arrest and possibly prosecuted criminally and sent to a U.S. prison. “They are sending back people very quickly, in hours,” said one Mexican seeking to cross. “The rumor is that chances of crossing undetected are higher, as you can try and try again without much consequences.”

As a result of the increasing number of attempts, the number of detected successful illegal entries (known as “gotaways”) increased dramatically during the Title 42‐​era to a level not seen since before the Great Recession. Under Title 42, the number of known gotaways—that is, detected crossers who were not arrested—grew from an average of about 12,500 per month in 2019 to an average of more than 50,000 in 2022. In fiscal year 2023, the average has been nearly 70,000 per month, according to government leaks to the media.

The Border Patrol does not expel some immigrants for various reasons. Mexico has agreed to accept back immigrants only from Mexico, the Northern Triangle (since March 2020), Venezuela (since October 2022), Haiti, Nicaragua, and Cuba (since January 2023). For anyone else, it is much more logistically challenging to fly them to their home country. In March 2023, Mexicans were expelled 83 percent of the time, Northern Triangle immigrants 62 percent, Nicaraguans 60 percent, Venezuelans 57 percent, Haitians 10 percent, and all others were expelled just 8 percent of the time.

In March, more than 44 percent of those not expelled are adults without children from countries other than the Northern Triangle and Mexico, 23 percent were families from those countries, another 15 percent were unaccompanied children (kids traveling alone) who are explicitly exempted from the policy, 11 percent adults without children from the Northern Triangle and Mexico, and 7 percent families from the Northern Triangle.

Immigrants from countries other than the Northern Triangle and Mexico are difficult to expel because they must be flown to their home countries. This is happening to some extent. The government averages about 120 removal and expulsion flights per month. At most, this is a capacity to fly out about 15,000 to 18,000 immigrants monthly. But because this includes expulsions of criminals and others from the interior of the United States, not just border arrests, the share of border crossers the government is able to fly out from the border is quite low. It also may not be possible for Border Patrol to detain someone long enough to transfer them to Immigration and Customs Enforcement for a flight out of the country.

It is not surprising that the government lacks the capacity to fly out this many immigrants from countries other than Mexico and the Northern Triangle because it has never in its history arrested so many immigrants from elsewhere. Already through half of fiscal year 2023, the Border Patrol has arrested more people from nontraditional sending countries than they did in their entire history before the Biden administration.

In addition to allowing Border Patrol to expel immigrants, Title 42 has also permitted Customs and Border Protection (CBP) to cap the number of asylum seekers at ports of entry. CBP has slowly increased the number of exceptions to the ban, but it has still not reached the level that it reached when it allowed Ukrainians fleeing the war to enter legally in April 2022. In March 2023, CBP processed just 645 asylum seekers per day at southwest ports of entry. These exceptions are important because they are effectively the only way to immigrate legally at the U.S.-Mexico border. Haitians have made up the largest proportion of immigrants admitted at southwest ports in recent months.

The administration says it plans to increase the cap at ports of entry to 1,000 per day starting on May 11, but it is estimating between 10,000 and 13,000 or more per day will be arriving both legally and illegally at the border, so the cap is far below demand. CBP should remove this unlawful and arbitrary cap on asylum, which is not found in the law.

In addition, the administration has created humanitarian parole programs that permit legal entry for people from Ukraine (since May 2022), Venezuela (since October 2022), Haiti, Nicaragua, and Cuba (since January 2023) who have U.S. financial sponsors. These immigrants can fly directly to the United States without coming to the U.S. border. These programs in conjunction with more admissions at ports of entry have transformed the flow from these countries from mostly illegal to nearly entirely legal in just a few months. Unfortunately, the administration is not expanding these programs to other nationalities.

The administration has done more than any since Eisenhower to increase legal migration to prevent illegal immigration, but much more can and should be done. Unfortunately, the main focus now seems to be perpetuating the status quo through deporting people to Mexico once Title 42 ends rather than building on the successful legal migration programs.