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What is immigration protocol now without Title 42 in place?

Despite or possibly because of the lifting of Title 42, attempted migrant crossings dropped by 50%. But southern border towns say migration is still higher than in years past, so what does immigration law look like now?

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A Venezuelan migrant cuts the hair of another on the banks of the Rio Grande in Matamoros, Mexico.

A Venezuelan migrant cuts the hair of another on the banks of the Rio Grande in Matamoros, Mexico, Sunday, May 14, 2023. As the U.S. ended its pandemic-era immigration restrictions, migrants are adapting to new asylum rules and legal pathways meant to discourage illegal crossings.

Fernando Llano, Associated Press

Title 42 expired on Thursday, and without the pandemic-era policy in place, many feared it would cause a significant increase of people trying to cross the border illegally.

According to the U.S. Department of Homeland Security, attempted migrant crossings has actually dropped — by 50%, per CNN.

“The numbers we have experienced in the past two days are markedly down over what they were prior to the end of Title 42,” U.S. Homeland Security Secretary Alejandro Mayorkas said on CNN.

But he also said it might be too early to know if there will be an upcoming surge or not.

Laredo, Texas, Mayor Victor Treviño said his community is still on “high alert” bracing for a possible surge.

“The unfortunate reality is that we were already at near capacity in our hospitals before Title 42 expired and without a pediatric intensive care unit,” Treviño, who is a physician, told CNN. “We wouldn’t be able to care for some of the arriving children and family groups.”

“The borders are not open,” Eric Welsh, an immigration lawyer and partner at Reeves Immigration Law Group in Pasadena, California, told the Deseret News. “I think that’s important to emphasize that the lifting of Title 42 does not mean there’s an open door to the United States. Our preexisting, pre-Title 42 laws were already quite strict.”

After having the Title 42 policy invoked for the last three years, what does U.S. immigration protocol look like without it?

What is Title 42?

Within the Public Health Service Act of 1944, there’s a section called Title 42 that the Trump administration deployed when the COVID-19 pandemic started spreading in the U.S.

The policy is to protect the public from contagious disease, and it allows border patrol to turn away migrants at the border without having to process and fingerprint them. It expedites the time-consuming process.

It also allows border patrol to turn migrants away from the border immediately, even if they request asylum — saying they would be unsafe returning to their home country. Under U.S. immigration law without Title 42 in place, for those individuals requesting asylum, it is mandatory to allow them to stay in a holding facility until their case is processed.

Despite the allowance to turn away migrants without processing their case, Title 42 was only “used about a third of the time,” The New York Times reported.

And the allowance does have its limitations and drawbacks when it comes to border control. Because it does not require each and every case to be processed, some individuals were not recorded and could attempt to cross the border again.

“They might try again the next day or the same day,” Welsh said. “They might try repeatedly, and they just keep getting pushed back until they finally found their weak spot. So it almost encourages recidivism.”

What is Title 8?

Without Title 42 in place, protocol returns to the requirements under Title 8. Under Title 8, people who attempt to cross the border again after being turned away could be immediately deported or detained.

Many immigration lawyers, including Welsh, have argued to end Title 42 to allow for formal due processing for individuals who try to cross the border illegally.

“It takes a little bit more time than the Title 42 push out, but it is a full process that requires fingerprinting, paperwork and record keeping,” Welsh said.

Misunderstandings around immigration and U.S. immigration law

Immigration laws are confusing, and experts feel differently about how to best tackle keeping the U.S. borders safe while also allowing for refuge for those who need it and do it legally.

The Biden administration is requiring “migrants to schedule an immigration appointment through an app or seek protection from countries they passed through on their way to the U.S. border,” Reuters reported.

If they skip that process and attempt to get into the U.S. illegally, they have to wait for five years to try again using the legal means to get in, and there could be prison time or other consequences for other violations, per Reuters.

Welsh said that some migrants looking to escape conflict or poverty in their home countries can be misled to believe the borders are more open than they are, which could lead to a possible surge in migrants attempting to cross the border.

“The problem with our broken immigration laws is that because they’re confusing, because they’re archaic, they lead to misinterpretation,” Welsh said. “You’ve got smugglers at the border who can take advantage of desperate migrants who don’t know the laws, and the smugglers don’t know the laws either, and they can tell a migrant whatever they need to tell them.”

For migrants seeking legal means to enter the United States, they should start consulting an immigration lawyer or reach out to government resources to see what is out there.