Given the ever-growing pressures on the border, is the Trump-era border policy known as Title 42 still useful?

On Tuesday, the Supreme Court ruled that Title 42 will be maintained for now. The policy was devised during the Covid pandemic to bar entry to migrants from certain countries into America on public health grounds. While the health crisis is over, neither President Biden nor Congress have come up with a strategy to dam the human flood at the border.

Anyone entering America illegally “will continue to be expelled to Mexico or their home country,” the Department of Homeland Security warned in a statement after the court’s ruling.

Yet, the Supreme Court’s ruling is “almost a moot point, because Title 42 has not been completely enforced over the last two years,” a retired Immigration and Customs Enforcement agent who frequents the southern border, Victor Avila, told the Sun.

A policy analyst with the Migration Policy Institute, Ariel Ruiz Soto, said that — at the moment, anyway — Title 42 only affects migrants from certain countries.

At the southern border “immigration consequences apply differently across the diversity of nationalities,” Mr. Ruiz Soto told the Sun. Title 42 won’t have an effect on migrants from several countries considered the primary contributors to the overflow at the border, he added.

According to data from the Border Patrol, more than 160,000 Nicaraguans have crossed the border in 2022. The number is almost 60 times as many who crossed the border two years ago. Yet, only 4,000 were expelled under Title 42. Nicaraguans are currently the second largest group of asylum-seekers at the southern border, followed by Cubans.

The Border Patrol has encountered more than 224,000 Cubans this year. Only two percent of them were expelled under Title 42, mainly because under American law Cubans are entitled to special consideration for asylum. “The primary people who are being expelled are not the primary nationalities that are increasing migrant flow at the border,” Mr. Ruiz Soto said. 

Title 42 did impact 86 percent of migrants from Mexico this year. Nearly 60 percent of Salvadorians and 66 percent of Guatemalans were also turned away because of the policy.

At the Texas crossings of Eagle Pass and Del Rio, Mexican and Central American nationals who would be turned away under Title 42 rules find ways to evade border patrol agents. “They are being smuggled to avoid encounters with Border Patrol agents,” Mr. Avila said. “Title 42 doesn’t stop migrants from Mexico or Central America from coming to America.”

In June this year, 53 migrants from Mexico and Central America died at San Antonio, Texas while attempting to be smuggled into the country. It was the deadliest smuggling case in American history, according to the Department of Homeland Security.

In order for a migrant to be expelled under Title 42, Washington must have an agreement with the migrants’ country of origin, or a third country that would accept them if expelled. In October, Mr. Biden agreed with the Mexican president, Andrés Manuel López Obrador, that a portion of the tens of thousands of Venezuelans arriving at the southern border would be returned to Mexico.

If a migrant can’t be expelled under Title 42, customs officials can expel them under Title 8 — a long-established policy that allows the government to remove anyone who is unable to establish a legal basis for entry, such as those seeking asylum.

This year, nearly 1.7 million migrants at the southern border were expelled under Title 8, almost twice as many as in 2021, according to data from the Customs and Border Protection. About 1.1 million migrants have been expelled under Title 42 in 2022.