Skip to main content

What Happens at the Border After Title 42?

The news that Title 42, a public health order by both the Trump and Biden administrations to manage migration at the border would come down on May 23, 2022, has generated a decidedly mixed response, amid worries that the end of the public health order would result in a large number of new arrivals at the southern border. The order ultimately did not end, as a federal judge issued a hold on the phase-out of Title 42 on May 20. Democrats and Republicans have called for a more detailed plan to be put in place before the order is lifted, with some advocating for the order to stay in place until the end of the public health emergency.

When Title 42 comes down, apprehended migrants will again be processed by U.S. Customs and Border Protection under Title 8 of the U.S. code. CBP tracks the processing disposition related to each apprehension which is made on a case-by-case basis. Below we examine how CBP managed encounters in the fiscal year 2022 which will likely reflect how dispositions of migrants will break down after Title 42 ends.

Under current Biden administration policies, the majority of those not excluded under Title 42 have been released into the U.S. If this pattern holds after the end of Title 42, it could double the number of people released into the U.S. to await court hearings to determine if they are ultimately ordered deported. However, the administration has said it intends to increase the use of expedited removal, which could reduce the percentage of migrants released into the U.S. given the similarities between the populations that have been expelled under Title 42 and those amenable to expedited removal (largely single adults and many from Mexico).

Share
Read Next

How is Title 8 used?

Figure 1: Monthly Southwest Title 8 Apprehensions and Title 42 Expulsions (March 2020 – April 2022) 

Source: CBP (1)(2) 

In conjunction with Title 42, Title 8 is still being used at the border now. The majority of those being expelled under Title 42 are single adults (88%) and migrants from Mexico and Northern Triangle countries (94%). There are no specific criteria outlining who is expelled under Title 8 versus Title 42, but the majority of families who cross the border in South Texas are not expelled under Title 42 (instead processed under Title 8), and unaccompanied children are barred from being expelled under the order. Under the Immigration and Nationality Act, codified under Title 8, DHS must deport migrants apprehended attempting to cross the border without inspection (between ports of entry or sneaking through ports of entry), or who are determined to be inadmissible at a port of entry. However, apprehended migrants can seek humanitarian protection during formal removal proceedings even if they do not have entry documents or did not enter legally. 

There are two kinds of removal proceedings under Title 8. The first, expedited removal, is a streamlined process that lets DHS quickly remove migrants without a formal court hearing and applies to anyone arriving without documents at a port of entry or who is apprehended between ports. If a migrant in the expedited removal process articulates an intent to apply for asylum because they fear returning to their home country, they will be interviewed by an asylum officer in a credible fear interview to determine if their claim has merit. If credible fear is determined, the migrant is placed into formal removal proceedings (the second kind of removal proceeding), which allows migrants to go before a judge to present their case for asylum in immigration court. If they fail the credible fear hearing or are ultimately denied asylum by an immigration judge, they then are subject to removal. 

What did CBP do with the migrants it encountered in FY2022? 

Figure 2: Migrant Encounters and Dispositions (FY2022 to-date)

Red = Held outside the country or sent outside the country;  Blue = Released into the country.

Figure 2 shows the outcomes of migrant encounters so far in FY2022. Under the chart, red represents those migrants who eventually were sent out of the country; blue represents migrants who were allowed to stay in the country while their case was decided. A little over half of approximately 1.2 million migrants encountered were sent out of the country under Title 42. The other half were processed under Title 8 with 400,000 migrants remaining in the country to await immigration court hearings and about 70,000 removed from the country or allowed to return abroad. 

Of those processed under Title 8 so far in FY2022, those designated Notice to Appear/Own Recognizance (NTA-OR) have been the largest disposition category at about 175,000. NTA is a charging document that signals the initiation of removal proceedings, and the person receiving the NTA must appear at immigration court on either a date specified or a date to be determined. Being released on “own recognizance” means that the individual being released signs paperwork committing to appear for scheduled immigration court hearings and is not subject to detention. People in the NTA-OR category are released into the U.S. without monitoring, after having committed to appear at their immigration court hearings. 

Figure 3: Number of Notice to Appear/Own Recognizance Notices Issued (FY2020–FY2022)

Source: CBP (1)(2)(3)(4)(5)

Under the Biden administration, the number of NTA-ORs issued has drastically increased. Under the Trump administration, only 359 NTA-ORs were issued between January 2020 and December 2020. In January 2021, 1,321 NTA-ORs were issued. Numbers continued to climb, peaking at around 60,000 in July 2021 before falling to around 20,000 in September 2021. The number of NTA-ORs has hovered around 30,000 per month since then, though there was a slight drop to about 22,000 in April 2022 

Figure 4: Number of NTA-ORs and Title 42 Expulsions (FY2020-FY2022TD) 

Source: CBP (1)(2)(3)(4)(5) 

In February 2021, the CDC exempted migrant children who arrived at the border without a parent or guardian from being expelled under Title 42, and then lifted the order completely for children in March 2021. This decision came after a January 2021 Mexican law under which the country said it would not hold children under 12 in government custody, forcing CBP agents to resume releasing families into the United States. The corresponding rise in NTA-ORs issued is seen in Figure 4 above. 

The second-highest disposition category used in FY2022 has been Warrant of Arrest/Notice to Appear (detained), with nearly 150,000 individuals in this category since October 2021. Individuals in this category are detained by Immigration and Customs Enforcement, often until their hearings in immigration court. 

Figure 5: Number of Warrant of Arrest/Notice to Appear (Detained) Notices Issued (FY20-FY22TD) 

Source: CBP (1)(2)(3)(4)(5) 

Under the Biden administration, detentions have increased from a high of about 4,000 detentions in December 2020 under the Trump administration to over 24,000 detentions in March 2021. The number of detentions has consistently stayed between 20,000 to 30,000 a month since then, with one dip to around 18,000 in January 2022. 

In August 2021, the Biden administration announced its Alternatives to Detention (ATD) Case Management Pilot Program which uses technology and other tools to monitor undocumented individuals’ compliance with release conditions while they are on the non-detained docket, meaning migrants are released and monitored during their release. About 120,000 migrants have been enrolled in an ATD program and paroled into the country since October 2021. ATD programs have existed since 2004, and the budget for these programs has risen significantly in the last five years from $126 million in FY2017 to $443 million in FY2022. The Biden administration has indicated that they intend to lower the number of migrants in detention and increase reliance on ATD programs, which means enrollments in ATD programs could rise. This seems likely, as the number of migrants in the Parole and ATD category increased significantly between March and April of 2022, going from about 25,000 enrolled in March to a little over 40,000 in April. As of April 23, 2022, approximately 227,000 migrants were enrolled in ATD programs—more than double the number enrolled in April 2021 (94,000)—indicating that the Biden administration has delivered on its promise to expand enrollment.

Figure 6: Number of Expedited Removal Notices Issued (FY2020-FY2022TD) 

Source: CBP (1)(2)(3)(4)(5) 

DHS Secretary Alejandro Mayorkas intends to significantly expand the use of expedited removal following Title 42. This fiscal year, around 53,000 migrants have been placed in the expedited removal category. 

The advent of the pandemic and Title 42 order led to a significant drop in expedited removals from about 8,000 in March 2020 to about 300 in April 2020. Numbers picked up again in January 2021 when Biden entered office, indicating the administration may have been preparing to expand the use of expedited removal, but numbers have fluctuated since and dropped significantly in October 2021. However, the number of migrants placed in expedited removal proceedings doubled between March and April 2022, jumping from around 6,000 in March to around 12,500 in April, showing a possible ramp-up by the Biden administration. 

Voluntary returns and reinstatements of prior orders of removal represent a smaller number of disposition notices, about 15,000 and 12,000 so far this fiscal year, respectively. Historically used primarily for Mexican citizens, voluntary returns are cases where individuals are allowed to return to their home countries on a voluntary basis without formal immigration removal. Reinstatement is a summary process under immigration law where an individual who was previously formally ordered removed and returns illegally can be removed again without formal immigration proceedings by “reinstating” the prior removal order. 

Conclusion 

Regardless of possible outcomes following Title 42’s repeal, this public health order is not a long-term solution for the border and border management—a clear plan to manage the border safely and humanely is long overdue. The DHS Plan For Southwest Border Security and Preparedness, a six-pillar plan that aims to surge resources to the border, increase processing efficiency, administer consequences for unlawful entry, bolster NGO capacity, target criminal organizations, and partner with Western Hemisphere nations is a start, but longer-term planning is needed. A new border management framework must consider new dynamics and patterns at the border, including the rising number of migrants from “other” countries. Our Redefining Border Security report lays out a framework for migration management and border security that sets up separate systems for processing asylum seekers and vulnerable populations at the border and apprehending and processing other immigrants trying to make illegal entries. Recognizing the fundamental shift in migrant demographics at the border, and adjusting our migration management frameworks accordingly, is vital to effectively managing the border. 

 

Support Research Like This

With your support, BPC can continue to fund important research like this by combining the best ideas from both parties to promote health, security, and opportunity for all Americans.

Donate Now
Tags
Share