What is Title 42, and what’s next for migrants to the US?

This week marks the end of a coronavirus-related restriction on claiming asylum that has allowed the US to quickly expel migrants at US-Mexico border since 2020.

The rule is known as Title 42, part of an arcane public health law that allows curbs on migration aimed at protecting Americans from disease.

The federal government and US states and cities on the border are trying to prepare for a fresh increase of people coming to the border and seeking permission to stay in the US. Joe Biden has warned the situation will be “chaotic for a while”.

How did Title 42 start?

In March 2020, under Donald Trump, the CDC issued an order limiting migration into the US, saying it was necessary to reduce the spread of Covid.

The order made use of little-used laws dating back more than a century that authorized border officials to immediately remove migrants, including people seeking asylum, overriding their normal rights.

The government argued that areas where migrants were held on the US side of the border after crossing without permission often were not designed to quarantine people or for social distancing. Migrant and human rights advocates condemned Title 42 as a ploy to stop immigration.

The Biden administration continued the policy amid legal battles and criticism from left and right. Liberals say the government is undermining asylum rights and breaking campaign promises about creating a fair and humane system. Rightwingers use inflammatory language about a migrant “invasion” and accuse Joe Biden of running an “open border”.

Title 42 has been used more than 2.8m times since 2020 to expel migrants back across the border. Some people have been exempt, including children traveling alone. But there have been mind-boggling variations in who the law is applied to and how it is enforced, resulting in widespread confusion and, often, chaos at the border.

Why is Title 42 ending?

The Biden administration announced in January it was ending the declared national emergencies linked to the coronavirus. That also spelled the end of using Title 42 to deal with immigration. Thursday was set as the end of the official emergency and the last day Title 42 was expected to be used.

The CDC announced in April 2022 that the rule was no longer needed because Covid vaccines and treatments were widespread. But Republican-leaning states sued to keep it in place. The Biden administration said it wanted to end Title 42 – but in fact tightened restrictions further.

What happens next?

Starting on 12 May, asylum seekers will be allowed to request asylum again at the border and will be interviewed by immigration officers. Those who are found to have a “credible fear” of being persecuted in their home countries can stay in the US and go through the immigration court system until a final determination is made.

That can take years. While some people are detained while their asylum process plays out, the vast majority are freed into the US with notices to report to the authorities or court.

Already some locations along the 2,000-mile-long US-Mexico border are seeing greater numbers of migrants than last winter. The US border patrol chief, Raul Ortiz, said on Twitter on Monday that his agents had stopped about 8,800 migrants a day over a three-day period crossing the border without permission. That was up from about 5,200 a day in March and at a pace to exceed the December tally, the highest month on record. But being able to request asylum will not necessarily mean a higher chance of being allowed to stay in the US and go through the court system than before – and could mean a lower chance.

Does the US have a plan?

Biden administration officials say yes, critics say no.

The federal government has said that it has spent more than a year getting ready for the end of Title 42. It expects more migrants will be crossing initially. Tens of thousands of people have been stuck on the Mexican side of the border after making their way, often in treacherous overland journeys through Central America, towards the US, only to be denied the right to ask for asylum or being expelled after crossing unlawfully.

There have been bursts of chaos and violence in the last two years when people, desperate for a way forward and often destitute by the time they cross the border after harrowing journeys and long waits in Mexico, cross without permission because official ports of entry have been all but closed.

The Biden administration’s strategy has relied on two approaches: providing more – but still limited – legal pathways for migrants to get to the US without just turning up at the border. And toughening border security to try to stop irregular crossings.

And in a new crackdown, Biden is adopting a rule that would generally deny asylum to migrants who first travel through another country before arriving at the border with Mexico. It also wants to screen migrants seeking asylum much more quickly and deport those deemed not qualified – then deny re-entry for five years.

Civil rights groups have condemned Biden’s hardening of policies, comparing it to actions taken by Trump.