The End of Title 42 and a New Beginning for Immigration Policy

Immigration Policy Brief #133 | By: Arvind Salem | May 19, 2023
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On May 11th at 11:59 PM EDT, a pandemic-era immigration policy deriving from a law known as Title 42 expired after being in effect for over 3 years. Title 42, part of a larger law known as the Public Health Service Act of 1944, was designed to help the President take emergency actions to control the spread of contagious diseases into the country: in this instance to control the spread of COVID-19. However, the period of national emergency ended, and Title 42 along with it.

 Before the enactment of Title 42, migrants could cross illegally and request asylum, allowing them to remain in the United States after they were screened and released until their immigration case was reviewed. Under Title 42, many migrants were prevented from seeking asylum and returned across the border. Notably, there were no legal consequences for someone attempting to illegally cross the border under Title 42, encouraging many repeat attempts. Title 42 was also not a blanket ban on asylum as there were certain exceptions, including unaccompanied children, Ukrainian refugees and migrants deemed to be vulnerable. The surge in migrants that qualify for an exception from Title 42 means that its use has been waning even before it has officially ended. Overall, Title 42 resulted in migrants being denied asylum over 2.8 million times.

With the end of Title 42,  United States migration policy will become governed by Title 8 of the United States Code. Title 8 carries more severe consequences for migrants attempting to enter the United States illegally. Title 8 and other border policies will remove migrants found ineligible for asylum through a quick deportation process known as expedited removal, which would also ban them from the United States for 5 years.




The end of Title 42 has huge political consequences and enormous consequences for the policy area of immigration as a whole. Politically, it creates a fracture in the Democratic party. Several moderate Democrats criticized Biden’s action to lift Title 42 and attempted to extend it. Meanwhile, this is a uniting moment for Republicans that allows them to energize their base around the issue of border security as the President has to navigate a post Title 42 world. Biden has already struggled with public approval on immigration, with a recent Reuters/Ipsos poll finding that 60 percent of Americans disapprove of President Biden’s handling of immigration compared to just 26 percent that approve. The expected migrant surge post Title 42’s expiration is likely to exacerbate this problem and allow Republicans to attack Biden for his handling of immigration and border security.

The end of Title 42 represents a crossroads for President Biden and the country on how they want to move forward on immigration policy. Reforms in the area of immigration policy have largely stalled, with the last big immigration package coming under President Reagan in 1986 with another smaller package coming under President Bush in 1990. With Congress seemingly unable to take action, President Biden is doing most of his work through Executive orders, including efforts to address overcrowding, stricter asylum rules, and attempting to speed up the process, all in an attempt to disincentivize illegal crossings and to stop people from paying smugglers to help them enter the United States.


Engagement Resources

  • FAIR, the Federation for American Immigration Reform, is a nonpartisan, public-interest organization that seeks to evaluate policies and develop solutions to reduce the impact of excessive immigration on all facets of the nation including security, the economy, and healthcare. Readers who want to help further immigration reforms through a nonpartisan organization may be interested in contributing to this organization.
  • The American Immigration Council works to ensure due process for all immigrants by increasing access to legal counsel for immigrants and using the legal system to ensure fair treatment for immigrants. The American Immigration Council also aims to educate the public and use communications strategies to spread awareness about the importance of immigrants to the United States. Readers who want to help more immigrants receive access to legal counsel may be interested in contributing to this organization.
  • The ACLU, the Americans Civil Liberties Union, is an organization that works to protect the freedoms of Americans across a wide range of issues, including voting rights, free speech, and racial justice. One of the issues they address is immigration, helping ensure that immigrants receive the legal protections that they are entitled to. Readers who want to help ensure that immigrants receive fundamental constitutional protections that they are entitled to may be interested in contributing to this organization.



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