What would the end of Title 42 mean to those on the border? KSAT Explains

May 23 was the day the Biden Administration hoped to end Title 42. A federal judge’s ruling allows it to stay in place, for now.

SAN ANTONIO – In March of 2020, at the height of the coronavirus pandemic, the Trump Administration enacted Title 42.

Since then, it has allowed Customs and Border Protection to turn away migrants at the border in an effort to slow the spread of COVID-19.

Few people had heard of Title 42 prior to the pandemic, but it has been on the books in the U.S. for nearly 80 years.

It’s part of the Public Health Service Act signed by President Franklin D. Roosevelt in 1944.

The intent of Title 42 was to suspend entries and imports from designated places to prevent the spread of communicable diseases.

Tuberculosis was a major public health concern then.

The same Public Health Service Act also created the National Cancer Institute.

“It had rarely been used and had never, ever been used in the immigration context,” said Erica Schommer, Clinical Professor of Law at St. Mary’s University.

That is, until 2020 when Title 42 was invoked to essentially suspend immigration at U.S. land borders.

It meant that Customs and Border Protection did not have to process people who presented themselves at the border wanting to seek asylum.

Instead, they are fingerprinted and expelled from the U.S., which is different than deportation. When someone is deported, they are barred from re-entering the country for a certain number of years.

Expulsion doesn’t carry that penalty.

What happens after someone is expelled depends on where a person is from.

“If they’re from Mexico or Central America, they’re typically just sent right back to Mexico within a matter of hours,” Schommer said. “If they’re from another country where, you know, Mexican immigration is not going to allow them to simply be put back, then they’re temporarily held in CBP custody. There were people who were being held in hotels until essentially a plane is filled up and then people are flown out.”

That’s what we saw play out in Del Rio in September 2021 when roughly 16,000 migrants from Haiti crossed into the U.S. hoping to seek asylum.

They were fleeing a country in upheaval after the assassination of the Haitian president and a devastating earthquake.

It became a humanitarian crisis with thousands of people living in makeshift shelters under the Del Rio International Bridge with few supplies and resources.

It’s a scenario the Mayor of Laredo is concerned about when Title 42 does end.

“Currently, as we speak, there’s over 3,000 Haitians in Nuevo Laredo, our sister city,” said Mayor Pete Saenz. “Obviously that’s going to take a long time and I don’t know whether these folks will get frustrated like they did in Del Rio and would want to come all at once.”

Mayor Saenz says Customs and Border Protection needs more resources to handle an increase in migrants.

CBP plans to add 600 agents to the border as Title 42 ends.

Homeland Security will also increase the capacity of federal holding centers from 12,000 to 18,000 and vaccinate migrants in federal custody. But will that be enough?

Read: How did a little-known provision in federal law upend the immigration system? KSAT Explains

Inconsistent application of Title 42

In March 2022, the border patrol facility in Eagle Pass was at capacity.

CBP announced it would begin releasing migrants into Dimmit County who had been processed and cleared through background checks.

“Could be 10, could be 50, could be 150,” said Oscar Puente, Mayor of Carrizo Springs, at the time.

He and other local leaders were caught off guard by the decision.

Title 42 was still in effect then allowing migrants to be automatically turned away at the border, so why was an immigrant detention facility so full?

In part, Schommer says, because the use of Title 42 has been inconsistent.

“Some of them are detained, some of them are released,” she said. “And so that is also a concern because it appears to be very arbitrary who is rejected and who is allowed to make a claim.”

To make an asylum claim, you must be physically present in the U.S. The process cannot be started online or at U.S. Embassy.

Once a migrant claims asylum, the next step is what’s called a “credible fear interview.” That’s when an asylum officer decides whether a person merits going through the full asylum process.

Fear is what Jeamy Solis is fleeing.

A KSAT crew met Jeamy and her three-year-old daughter at the Catholic Charities Respite Center in McAllen.

They came to the U.S. from Nicaragua to escape political oppression and violence.

“It’s terrible. We are oppressed. We cannot speak up because they will report you to police. You can’t express your views. You live in fear,” Jeamy told us.

She was one of the lucky ones who wasn’t turned away.

So is Yasmani Gonzalez Vasquez from Cuba, who we also met at the respite center.

What he fears, he says, is hunger in his home country.

“We are seeking asylum in order to have a better future,” he said. “We wanted to come to this country to have a better future for the baby and for us, too. That he may have everything that a Cuban cannot.”

Advocates for migrants want to see Title 42 ended in order to restore the opportunity for everyone to seek asylum who so chooses.

“That is all that we’ve been advocating for, right? Allow people to apply for asylum. It doesn’t mean they get to stay. It just means give them a chance to apply,” Efren Olivares with the Southern Poverty Law Center. “And if they qualify, they get to stay. If they don’t qualify, they may be deported. And Title 42 gets rid of all of that.”

‘Adding to an existing burden’

There are those who enter the U.S. illegally who don’t seek asylum, whether frustrated with too slow a process at the southern border or simply hoping to evade immigration authorities.

Richard Guerra owns La Anacua Ranch in Starr County, outside of Roma. He’s seen firsthand what migrants often go through trying to make the dangerous journey into the U.S.

Guerra once found 5 women who had been wandering his ranch for 5 days without food or water.

“They have been abandoned. Whoever brought them across abandoned them and they told them, ‘well, it’s a short just a short distance and you’re going to be in Houston,’” Guerra recalled. “But of course, that’s not true.”

“It’s so hard to see people enduring things like that, you know?” he said.

His fences have been damaged by migrants who cross his land. Even his cattle have been affected. But a concern that spreads beyond his ranch, he says, is drug smuggling.

“There’s a lot of narcotics coming across. The National Guard, they’re allowed to supplement the Border Patrol. And even so, they can’t control it. So it’s out of hand,” Guerra said. “By removing Title 42, you’re going to add to an existing burden.”

Did Title 42 create an anticipated surge of migrants?

Yet, some argue the anticipated wave of migrants is a problem U.S. policy created.

“Because of Title 42, that’s the reason why we have the levels and activities that we see right now,” said Laura Pena, Director of the Beyond Borders program.

“The numbers are arguably higher right now precisely because we’ve been pushing people back for more than two years,” Schommer said.

During Fiscal Year 2022 so far, U.S. Customs and Border Protection has tallied up 1,216,173 rejections of migrants at the southern border.

Of those rejections, more than half — 631,942 — were Title 42 Expulsions.

Those numbers reflect the number of times a person has tried to cross the border, not the number of people because the same person can try more than once. It can be confusing and complicated, much like the American immigration system itself.

Despite calls again and again for reform, substantial change continues to be a struggle.

For now, we’ll see what a change in Title 42 brings to Texas, if and when it happens.

The ruling by a federal judge in Louisiana that allows Title 42 to remain in place, for now, is expected to be the beginning of a long legal battle as the Biden Administration fights to end Title 42 while several states, including Texas, sue to keep it in place.

“I think that it’s going to be very chaotic depending on what decisions are issued by which courts regarding what policies,” Schommer said.

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About the Authors:

Myra Arthur is passionate about San Antonio and sharing its stories. She graduated high school in the Alamo City and always wanted to anchor and report in her hometown. Myra anchors KSAT News at 6:00 p.m. and hosts and reports for the streaming show, KSAT Explains. She joined KSAT in 2012 after anchoring and reporting in Waco and Corpus Christi.

Valerie Gomez is the lead video editor and graphic artist for KSAT Explains. Before starting at KSAT in 2017, she worked as a video editor for KENS 5 and KVUE in Austin. She graduated from Texas State University in 2013 with a bachelor's in mass communication and is a product of SAISD and the South Side of San Antonio. She loves Jeff Goldblum.