Will Lifting Title 42 Cause a Border Crisis? It’s Already Here.

EL PASO, Texas — For months, migrants from Nicaragua and Colombia, toddlers on their shoulders and knapsacks on their backs, have been wading across the shallow waters of the Rio Grande near El Paso and forming lines to turn themselves in to U.S. border authorities. Further west, in Arizona, migrants from Russia, India and South America have been passing through gaps in the border wall and surrendering to U.S. agents.

None of them have been held back by a nearly three-year-old public health measure, known as Title 42, that was billed as an attempt to effectively close the border against the soaring numbers of migrants unlawfully entering the United States. They are not being barred from making an asylum claim; they are not being expelled to Mexico.

Migrants are lining the sidewalks in El Paso, where many have been sleeping under donated blankets because shelters are at capacity. Migrants taken into custody in Arizona are being bused to San Diego for processing to avert chaos at crowded holding facilities, and then dropped off at bus stations to head for destinations across the country.

The Supreme Court on Tuesday blocked the Biden administration’s attempt to lift the Trump-era pandemic restriction at the southern border after 19 Republican-led states argued that the rule’s immediate termination would wreak havoc at the border.

But the reality is that, despite all the dark predictions over what will happen whenever Title 42 is lifted, the southern border already is in the midst of a record-setting migration surge that is likely to persist for the foreseeable future. The border-control measure is full of exemptions under which tens of thousands of migrants every month are showing up at U.S. ports of entry with a relatively high degree of confidence that they will be allowed to stay.

“Postponing the end of Title 42 will avoid a tiny moment of chaos but doesn’t provide a solution for what is going on at the border,” said Andrew Selee, president of the Migration Policy Institute, a nonpartisan think tank.

“The reality is that people are coming from a much wider group of countries than ever before, and most aren’t subject to Title 42,” he said. “There is not a set of policies to deal with growing numbers of people from other parts of the world. Title 42 has long lost most of its effectiveness as a deterrence tool.”

Last month, 29 percent of all border crossers were expelled under Title 42, while the vast majority came from a long list of countries — including Colombia, Cuba, India, Nicaragua and Russia, among others — for which Title 42 does not apply.

In thousands of other cases, migrants were allowed to enter the United States because they were traveling with children or qualified for some other form of protection under humanitarian law. An unknown number, most crossing in remote areas, were able to evade border authorities and enter the country without being apprehended.

The 2.4 million Border Patrol encounters with migrants in the 2022 fiscal year that ended on Sept. 30 represented a record high. And it is probably no accident that the steepest increases were among migrants not subject to Title 42. There was a nearly 2000 percent increase in the number of Colombians encountered during that period compared with the previous fiscal year; Indians increased by 607 percent; Cubans by 471 percent; Russians by 430 percent and Nicaraguans by 227 percent.

By contrast, apprehensions of Hondurans and Guatemalans — two countries that made up a large share of the migrants arriving in the United States in most recent years, but whose nationals are now subject to expulsion under Title 42 — were down by 33 percent and 18 percent, respectively.

This unusual trend has continued in the new fiscal year: Of the migrants encountered in November at the border, 39 percent were from Mexico, El Salvador, Guatemala or Honduras, whose nationals can be expelled under Title 42. Cubans and Nicaraguans, who cannot be swiftly expelled, outnumbered migrants from the Northern Triangle countries — Guatemala, El Salvador, and Honduras — a situation that would have been unheard-of even a year ago.

“We are pretending that this policy that applies to a small subset of people is going to cure the push factors globally encouraging so many to travel to the border,” said Jeremy Robbins, executive director of the American Immigration Council. “Even with Title 42 in place, the numbers are bound to keep increasing.”

The recent crush of migrants gathering in the streets of El Paso has drawn comparisons to Los Angeles’s Skid Row by critics of U.S. immigration policy.

Dozens of people spent Tuesday night under Red Cross blankets on the ground. The city set up portable toilets and sinks and opened a city bus for migrants who were without shelter to escape the cold.

At 7 a.m. on Wednesday, migrants were queuing up at the outdoor sinks to brush their teeth and wash their faces; others huddled beneath blankets.

Monica Ortiz, 47, a teacher in Dallas, had arrived with her nieces and husband to welcome the new arrivals, serving hot chocolate, coffee, oranges and pastries. They used a two-burner Coleman camp stove to heat water.

“We were raised on the border, so this isn’t uncommon. Now it’s in greater numbers,” Ms. Ortiz said.

She and others working with migrants along the border said the public health border-control measure appears to have encouraged people from countries not subject to the expulsion policy to hurry north, seeing a window of opportunity. Many fear it could go away if Title 42 were lifted and alternative border control measures were put into place.

“People hear Title 42 and believe the border will shut down completely, so it’s a greater urgency for them to get here,” Ms. Ortiz said.

Rosina Omier, 40, and her niece, Sharina Bons, 18, left Nicaragua on Nov. 18 and crossed the Rio Grande near downtown El Paso a month later to ask for asylum. They were in custody for 12 hours.

“It was fast,” Ms. Omier recalled. “We entered at night and were released at 8 a.m. in the morning.”

Dario Estrada, 21, Vanesa Mejia, 20, and their 18-month-old son, Mathias, left Medellín, Colombia, on Oct. 1, worried over what they said was the rising gang violence in their neighborhood.

After wading across the murky river near El Paso, they pushed through a crack in the border wall and were picked up by U.S. authorities who instructed them to check in with immigration enforcement within 60 days in Houston, their stated destination.

But they had no money for bus fare to Houston, and after spending three nights at a local shelter, which limited stays to 72 hours, they moved on Tuesday night to the sidewalk in front of a church, where they slept under blankets on cardboard boxes.

Shelter operators in Arizona have also seen a change in both the number and nationalities of migrants entering the country. Joy Tucker, who has coordinated the kitchen at the Casa Alitas shelter since 2019, said the facility in those days was receiving a few hundred migrants daily, mainly from Central America. This month, the arrivals hit about 1,000 in a single day, coming from more than 35 countries, as far away as Albania and Uzbekistan — countries whose nationals are not subject to Title 42.

“We are seeing a huge increase in the amount of people, and more and more diversity,” she said.

Introduced by the Trump administration in March 2020, Title 42 is a provision of a 1944 health law that empowers the government to impede the entry of foreigners during public-health emergencies. Critics from the beginning said that the rule had been adopted not to control the coronavirus but to impede the large numbers of migrants who had been fleeing poverty and gang violence in Central America and Mexico.

But even after the pandemic was no longer an issue, the Biden administration has continued to use the measure to summarily expel migrants from Mexico, El Salvador, Guatemala, Honduras and, more recently, Venezuela. Such migrants could easily be turned away from the U.S. because Mexico was willing to accept them.

U.S. authorities were also able to use Title 42 to expel migrants from countries where they could be easily flown home, such as Haiti and Brazil. In all, the public health measure has been used to justify 2.5 million expulsions, including many migrants who might otherwise have applied for asylum in the United States.

From the beginning, though, there were countries for which it was logistically difficult to fly migrants home, mostly because the United States had no diplomatic agreement for returning them. Colombia, Nicaragua, Venezuela and Russia all fit into that category, and those are the countries which, in many cases, have fueled the latest surge in migration that shows no signs of abating.

A federal judge ruled in November that the health measure was being misused as an immigration enforcement tool and endangering the lives of migrants, and gave the government until Dec. 21 to lift it. The Biden administration agreed to comply.

Nearly two-dozen mainly Republican-led states appealed to the Supreme Court to keep Title 42 in place, and the high court’s ruling on Tuesday suspended the measure’s termination until the justices next year can consider the issue further.

The decision gives the administration more time to prepare for the end of the policy, which is likely to remain in place until June.

Facing mounting pressure to rein in the number of unauthorized border crossings, the Biden administration could extend Title 42 to nationals of other countries as it recently did with Venezuelans in November.

But reforming the overburdened, inefficient asylum system will be key to any longer-term border management.

“It remains a major question of how quickly they can reform the asylum system, which is absolutely central to being able to manage future border arrivals without Title 42,” Mr. Selee of the Migration Policy Institute said.

In the meantime, even the news that the Supreme Court had left the U.S. border closed to many migrants failed to stop the ever-growing number of migrants assembling in the Mexican city of Ciudad Juárez,on the other side of the border from El Paso, hoping for a chance.

One of them, José Ramón Aguilera Guzmán, 22, said he was the first in his family to leave Venezuela. He had spent the past few days sleeping in a parking lot near the Rio Grande, expecting that the Biden administration would go forward with its plan to lift Title 42, and that he would be allowed to enter the United States. Even with the Supreme Court’s decision to keep Title 42 in place for now, he said, he has no choice but to wait.

“What can you do with a monthly salary of two dollars if your family is seven or eight people?”

John De Frank, Gray Beltran and Alicia Fernández contributed reporting.