Illegal Border Crossings Today:

Border Doomsday: Ten Days Until the End of Title 42

doomsday clock as Title 42 ends soon, large group of migrants

FAIR Take | May 2023

On May 11, President Biden will end the public health emergency designation and, with it, Title 42 authority to expel illegal aliens.

Customs and Border Protection (CBP) has used Title 42 authority to turn individuals away at the border since March 2020. According to CBP, of the 191,900 encounters at the southern border in March, nearly 88,000 of those removed were processed under Title 42. So far in fiscal year 2023, there have been 419,147 such expulsions under Title 42.

Without Title 42 authority to summarily expel illegal aliens, the Department of Homeland Security is bracing for an onslaught of illegal border crossings. By the Administration’s own estimates, the number of illegal aliens attempting to enter the country could reach as high as 18,000 a day.

After months of promising it would be prepared for the end of Title 42, last Thursday, DHS finally announced its plan to take “sweeping new actions” to “manage regional migration.”  This plan, according to DHS, will include expanding “lawful pathways” and facilitating “the safe, orderly and humane processing of migrants.”  These actions include:

  • Launching a new, illegal parole program under the guise of “family reunification” for foreign nationals from Colombia, Honduras, El Salvador, and Guatemala. 
  • Setting up regional processing centers across the Western Hemisphere to funnel people into the U.S.
  • Admitting twice as many refugees from the Western Hemisphere, increasing the number of annual refugees by thousands.
  • Expanding access to the CBP One phone app which allows illegal aliens to come to the U.S. border to claim asylum or enter without visas through parole.

These so-called legal pathways, however, are neither legal nor new.  The proposed family-unification parole program directly violates the parole statute (INA 212(d)(5)) and usurps Congressional authority by creating a “shadow” family immigration program designed to circumvent the existing laws passed by Congress.  The regional processing centers are really nothing more than expanding the availability of consular services.  And increasing the numbers of refugees admissible from the Western Hemisphere will not magically make economic migrants eligible for admission—unless the Biden Administration is also planning to violate the laws for eligibility.

In addition to creating these “expanded legal pathways,” the Biden Administration claims it will impose “stiffer consequences” for failing to use these lawful pathways.  According to DHS, these stiffer consequences include:

  • Deporting illegal aliens through expedited removal in a matter of days, and
  • Barring the re-entry of illegal aliens to the United States for at least five years if ordered removed.

These “stiffer consequences,” however, merely represent current law.  Section 235(b) of the Immigration and Nationality Act already requires the government to detain and deport illegal aliens arriving at the southern border through expedited removal.  And, Section 212(a)(9)(A) already bars aliens who have been deported through expedited removal or pursuant to judge’s order from re-entry for five years. Thus, the Biden Administration is not imposing stiffer consequences for illegal border crossers.  It is only suggesting it might enforce current law.

Finally, the Biden Administration says it will bar illegal aliens at the border from applying for asylum if they have not already applied for asylum in one of the countries they have passed through to reach the U.S.  The Biden Administration says it will do this through its new regulation, entitled Circumvention of Lawful Pathways.  This regulation, however, has a huge exception: it allows migrants to come directly to the U.S. and claim asylum – without applying in another country first – as long as they register with the CBP One App and present themselves at a port of entry.  So the Biden Administration’s claim here that it is limiting asylum seekers is actually false.

Thus, the Biden Administration’s plan to address the end of Title 42 is simply more of the same failed policies that will only worsen this crisis and threaten our sovereignty and security.  The plan does not even make a pretense that it is designed to prevent the predicted flood of illegal aliens from entering the country. Rather, it is a massive scheme to process those aliens and disburse them around the U.S. as quickly as possible.

Since President Biden took office, Americans have seen nearly 7.5 million illegal aliens cross our southern border. Children are being trafficked, fentanyl is being imported and killing people across the country, and the crime and violence along the border are wreaking havoc on our agents and communities. Meanwhile, the Secretary of Homeland Security refuses to call it a crisis. Open-borders advocates have essentially demanded catch-and-release for all and have rebuked the Administration for using Title 42 expulsion authority.

The Biden Administration knew this day was coming and has still failed to put forward any plan to deter mass migration and caravans, even with migrants gathering across the border in anticipation. Instead, DHS has offered a plan that will accommodate the expected surge of illegal aliens rather than prevent it.

As May 11 nears, FAIR will continue to push for Congress to take action since President Biden and Secretary Mayorkas clearly want to ignore the law, turn their back on our Border Patrol agents, and reject the will of the people.