The Biden administration has already significantly dismantled the Title 42 pandemic policy for turning away migrants at the border, meaning that its role in curbing illegal migration is limited despite a federal judge's order Friday preventing it from being lifted entirely.

Just 47% of the migrants the Border Patrol apprehended in April, 94,658 of the 201,800, were immediately turned back at the border under the Centers for Disease Control and Prevention’s Title 42 policy, according to data published by U.S. Customs and Border Protection. In the final three full months of the Trump administration, 84% were expelled under the same policy.

The fact that a majority of migrants are allowed into the country even with Title 42 in place is attributable to a series of actions by the Biden administration to exempt certain groups, most notably children and families.

“The use of Title 42 has had a slow death by the administration because it has been so watered down from the initial inception,” said Dr. Victor Manjarrez Jr., associate director for the University of Texas Center for Law and Human Behavior in El Paso and a former senior Border Patrol agent. “You look at the categories of people it has been applied to recently, and it is mostly single adults. Title 42 initially was applied to just about every nationality, but now it is down [to] Mexican, Guatemalan, and other few select countries. The administration has taken steps over the last several months to effectively make the use of Title 42 insignificant.”

Title 42 was put into place in March 2020 as a means of preventing the Border Patrol from taking illegal immigrants into its stations, where the coronavirus would likely spread at a rapid pace. The policy also prevented asylum-seekers from making claims at ports of entry.


Over the first six months of President Joe Biden’s first year, the number of people returned under the measure dropped as a percentage as the number released into the United States rose.

First, the administration decided in January 2021 not to expel children who showed up at the border alone. Then, last fall, some Mexican states refused to accept back migrants from select countries and families with older children. Because Mexico refused to allow the U.S. to expel people, the Border Patrol took people into custody. Some nations, including Venezuela and Cuba, have refused to allow the U.S. to repatriate their citizens, making it impossible to send them back to Mexico or to their country of origin.

By July 2021, more people were being placed released into the U.S. and put into court proceedings for illegally crossing the border. Because the U.S. government lacks the legal authority and facilities to detain as many migrants as were being taken into custody, authorities released people into the U.S., as has been done under previous administrations. The Biden administration has opted to use cellphone monitoring apps and ankle bracelets to track migrants when they are released instead of immigration jails that are contracted through private companies.

Between October 2021 and April of this year, 1.2 million people were apprehended by the Border Patrol after illegally crossing into the U.S. from Mexico. Of those 1.2 million, 631,000 (52%) were turned back, compared to 584,000 (48%) who were processed under other procedures, the majority of whom were released into the U.S.

Following the Biden administration's April announcement that it would end Title 42 on May 23, the administration began increasingly using a process known as "expedited removal" to repatriate migrants to their home countries. Under that process, though, removals are contingent on that person not claiming asylum while in custody. If the person claims asylum during the expedited removal process, they would undergo an initial asylum screening called a "credible fear" interview and be referred to immigration court if they pass, resulting in their release into the U.S. Border officials do not disclose how many migrants make such claims.

Starting Monday, the Biden administration has instructed federal law enforcement to give migrants who would normally be immediately expelled without getting a chance to seek asylum under Title 42 the chance to seek refuge before being returned. This will largely affect migrants from Central America, whom the government has been able to return to the region.

Federal asylum officers have been deployed from across the country to the southern border, where they can screen migrants in an effort to handle more cases there rather than release migrants into the U.S. to appear in court years down the road. The move is meant to resolve more claims at the border instead of releasing thousands of migrants into the country each day.

Some Democrats have criticized Biden for using a public health measure to affect immigration policy. Biden vowed to end Title 42 early on in his tenure, as well as a Trump-era program that he said was unfair to asylum-seekers. That program, the Migrant Protection Protocols, or the "Remain in Mexico" policy, which mandated that asylum-seekers wait in Mexico while their cases made their way through U.S. court, was rescinded in Biden's first few months in office and later reinstated by the Supreme Court. The Biden administration has re-implemented MPP but to such a smaller extent that it is not having a significant impact at the border.

U.S. District Judge Robert Summerhays of the Western District of Louisiana dealt a blow to the Biden administration on May 20 by halting its planned cessation Monday of the Title 42 policy. Summerhays ordered U.S. border officials to continue turning illegal migrants back to Mexico rather than taking them into custody.

In the four days since Summerhays issued his ruling, regions along the border that have had high illegal crossings are seeing historic rises. In some cases, very few of those coming across in certain areas are being expelled under Title 42 despite the Department of Homeland Security's vow to follow the judge's order.

In western Arizona, where between 1,200 and 1,500 people have been crossing per day since Friday, 2% are being returned, according to federal data obtained by the Washington Examiner. Virtually all others are released into the U.S. to await immigration hearings, which will not take place for several years.

Fewer than 15% of illegal immigrants apprehended in the Rio Grande Valley of Texas were expelled in the same time period.


The Department of Justice has vowed to appeal the judge’s decision.