Preparation & Delay in Lifting Title 42 at the Southwest Border

Title 42 is a public health order instated in 2020 to protect Americans from the spread of COVID-19. The order requires immediate expulsion of certain noncitizens that cross the border unauthorized. Under the order, access to asylum and humanitarian protections are sharply curtailed due to the rapid nature of expulsions. The order was scheduled to be lifted in December, but its expiration has since been delayed due to a stay granted by Justice Roberts after 19 states appealed. It is now scheduled to expire on 1/3/2023. However, the Supreme Court could announce a decision on or before that date to debate the merits.

To prepare for the order to be lifted, and considering an increase in migration, the Department of Homeland Security (DHS) has employed six pillars:

1. Surging resources to support border operations;
2. Increasing processing efficiency at customs;
3. Administering consequences for unlawful entry such as removal, detention, and prosecution;
4. Bolstering the capacity of NGOs to received processed noncitizens;
5. Targeting transnational criminal organizations and smugglers; and
6. Collaborating with international and federal partners to deter irregular migration south of the border.

In a recent report, DHS notes an expected increase in migration over the coming weeks and months, and states that the U.S. immigration system is already under strain. DHS states the only real solution to the challenge expected following the lift of the order is for Congress to fix the broken and outdated system and provide the department with sufficient resources. 

Though the order was scheduled to be lifted on December 21, Supreme Court Justice Roberts temporarily halted its expiration after 19 states filed an appeal. The states argue in their appeal that the removal of Title 42 will cause a crisis by exacerbating the issues at the southern border as estimations predict major surges in unlawful border crossings. The solicitor general argues that states are not entitled to uphold the now-obsolete health order. Migrant and advocate attorneys concur, stating that the appeal is without legal basis and noting it is Congress’ responsibility to make changes to immigration statutes. 

The battle over the expiration of the order began when the Biden administration sought to lift the order in the spring of 2022. Following the stay granted by Justice Roberts, Biden requested the Supreme Court allow Title 42 to expire but delay that action until after Christmas. Title 42 is now expected to expire on Tuesday, 1/3/2022. However, the Supreme Court could announce a decision on whether to debate the merits of Title 42 on or before that date.

Following the lift of Title 42, all noncitizens are to be processed under Title 8. Title 8 provides that individuals who cross the border without legal authorization are processed for removal, and if they are unable to establish a legal basis to remain, are promptly removed. 

Update on Title 42 – Supreme Court Rules to Keep Order in Place: On 12/27/2022, The Supreme Court ruled in favor of keeping the restrictive order in place. In February 2023, the Supreme Court will hear the case on whether Title 42 should stand. The order remains in place until the Supreme Court ultimately makes their decision in June 2023.