A federal judge has blocked Title 42; how did it create a revolving door for migrants?

A federal judge in Washington, D.C., struck down Title 42 Tuesday. The policy impacting asylum-seekers and other migrants was issued at the start of the COVID-19 pandemic by the administration of former President Donald Trump.

Title 42 has created a revolving door at the southwest border for some migrants. Migrants from countries such as Mexico, Guatemala and Honduras generally face a quick expulsion.

Others from countries including Cuba and Nicaragua get a fighting chance in the nation’s clogged immigration courts. In mid-October, the policy was lifted for migrants from Venezuela after record numbers sought entry into the U.S.

The policy wasn’t supposed to work this way in March 2020 when the pandemic order was established. But because there are no legal consequences for multiple attempts to cross the border, some migrants try again.

So 9 out of 10 Mexicans caught by the Border Patrol this year were quickly sent back under Title 42, according to data from U.S. Customs and Border Protection, the parent agency of the Border Patrol.

The reverse is true of Cuban migrants, who have been allowed into the U.S. under regular immigration law about 97% of the time this year. But they must fight their cases in federal immigration courts, where the backlog is now 2 million. Cubans have arrived in the U.S. this year in numbers surpassing the exodus of 125,000 from the port of Mariel in 1980.

Cubans, Nicaraguans and Venezuelans largely come into the U.S. under regular immigration law because the U.S. has poor diplomatic relations with those countries, noted Adam Isacson, a security analyst with the Washington Office on Latin America.

The Mexican government plays a huge role, too. Of those expelled in July, 99% came from four countries whose citizens Mexico allows to be expelled back across the border: Mexico, Guatemala, El Salvador and Honduras, Isacson said in a recent report.

“Looking at the data, what I see is we have the worst of both times,” said Theresa Cardinal Brown, managing director of immigration and cross-border policy for the Bipartisan Policy Center in Washington, D.C. “We have higher levels of Mexican migration that’s repeat-crossers. And we have this new phenomenon of migration from lots of different countries in the world.”

Title 42 was issued by the Centers for Disease Control and Prevention amid controversy that other people potentially infected with COVID-19 could still cross. The CDC lifted the order and set that date for May 23 this year. But a lawsuit in a Louisiana federal court prevented that.

Another Title 42 suit was filed in the Washington, D.C. district court and the ruling Tuesday by U.S. District Judge Emmet G. Sullivan is to take effect immediately. It effectively restores the ability of asylum-seekers to petition for asylum when they reach the U.S. border.

The use of Title 42 had already been decreasing. Less than 40% of migrants were expelled under the policy in October. That’s because Mexico wouldn’t accept migrants from certain countries under Title 42, or because the U.S. couldn’t send them back to their homelands due to frosty diplomatic relations.

In the interim, Title 42 has been used nearly 2.4 million times to quickly expel certain migrants. Immigration advocates charge it prevents due process, especially the due process of an asylum petition. Others say not every migrant coming to the border seeks asylum. Some simply seek a job.

Still, others argue the logic of the public health order — based on the COVID-19 pandemic — no longer applies with so many economies opening up.