Will DHS End Title 42 Entirely?

FAIR Take | May 2021

It is no small secret that the United States is currently facing a border crisis. Already through the first six months of Fiscal Year 2021, Customs and Border Protection (CBP) has apprehended 569,879 illegal aliens at the Southwest border — more than the entire number of apprehensions in FY 2020.

This all started when President Biden exited out of successful asylum agreements struck with Mexico, Honduras, Guatemala, and El Salvador. Then, in a head-scratching move, President Biden ended Title 42 restrictions against unaccompanied alien minors (UAMs). This had the predictable effect of leading to a surge of UAM apprehensions. That said, CBP turns away the majority of apprehended adults at the border and releases them back into Mexico. Title 42 is truly the only policy keeping the current crisis from becoming a catastrophe.

According to media reports, the Department of Homeland Security (DHS) is looking to end this effective policy soon.

CNN’s Priscilla Alvarez and Geneva Sands report that DHS may begin the process of ending Title 42 protections, even as the United States faces an unprecedented number of illegal alien apprehensions at the border and as new and more contagious strains of the COVID-19 virus appear worldwide. And while a DHS official told Alvarez and Sands that the Title 42 restrictions are “quite necessary [and] quite convenient right now,” DHS Secretary Alejandro Mayorkas admitted that DHS will try to end the restrictions “as quickly as possible.”

The majority of Americans polled indicated that they disapprove of the way that President Biden is handling (or, rather, refusing to address) the border surge. Removing the only obstacle between what we currently have and what Rep. Yvette Herrell (R-N.M.) described as “opening the floodgates” would almost certainly negatively impact his border approval. Even Rep. Henry Cuellar (D-Texas) argues that the Title 42 protections must stay if we are to avoid a cascading crisis.

So why is the Biden administration moving in this direction? Part of it is President Biden’s stubborn commitment to undo every part of his predecessor’s legacy — even the aspects that worked, such as the Migrant Protection Protocols. But in the instance of Title 42, there is an additional element. The American Civil Liberties Union (ACLU) — one of Democrats’ and Biden’s biggest supporters — sued the administration over its continued use of Title 42. In the CNN piece, ACLU attorney Lee Gelernt said that, “we remain troubled by the lack of a timeline to get rid of Title 42, which we have always believed — and even more so — to not just be justified on public health grounds.”

Further lending support to the ACLU’s outrageous assertion that Title 42 is not justified on public health grounds, CNN quoted the Migration Policy Institute’s president Andrew Selee asserting that “Title 42 is gradually becoming less effective as a deterrent and more problematic on questions of rights and procedures.”

At the time of this writing, Title 42 still stands in effect. It should remain in effect until (1) the public health emergency declared for COVID–19 ends, (2) the public health emergencies declared for COVID–19 by all States are no longer in effect, and (3) the Director of the Centers for Disease Control and Prevention reduces the travelers’ health risk level for introducing, transmitting, and spreading COVID–19 in or from Canada and Mexico to Level 1. These are the provisions laid out by the PAUSE Act, H.R. 471, a FAIR-supported bill sponsored by Rep. Herrell that codifies in place Title 42 restrictions until our country meets those three parameters.

It is simply too early and too dangerous to end Title 42 at the southern border. President Biden must ignore calls to rescind this important policy.