What happens after May 11? Understanding Title 8 and the expiring Title 42

Jerry Pacheco

Complicating the matter is the impending expiration of Title 42, which was enacted during the Trump Administration during the COVID pandemic. This code allows Customs and Border Protection the ability to deny migrants seeking asylum entry into the U.S. After crossing into the U.S., they are processed quickly at the ports of entry and then returned to Mexico, where they must wait for an asylum hearing. Title 42 was extended during the Biden Administration, and is set to expire on May 11.

The $64,000 question seems to be, “What happens after May 11?” Most people with whom I have spoken seem to automatically think that if the U.S. loses its ability to quickly expel migrants to Mexico, the flow of asylum seekers will greatly increase. Undoubtedly, many migrants believe that after May 11, it will be easier for them to enter and stay in the U.S. While both of these viewpoints could have merit, a thorough understanding is needed of Title 8, which was in place before Title 42 and will supersede it.

Title 42 is a federal public health order, while Title 8 is an immigration and border order. Under Title 42, a migrant can illegally enter the U.S. multiple times and be processed and expelled to Mexico multiple times. He/she is not incarcerated or fined. Under Title 8, a migrant who crosses illegally into the U.S. the first time can face a fine or misdemeanor penalty before he/she is deported. Note that under Title 8, the migrant is deported, not expelled. If this same migrant enters the U.S. again, he/she could face felony charges. If these illegal entries continue, the migrant could be incarcerated or banned for years from future entry into the U.S. and asylum. Thus, Title 8 takes a much stiffer approach on repeat offenders.

...After May 11, we can expect holding camps to swell and more to be built. Immigration courts also will see an increased workload. This is disconcerting, because they are already short of judges and personnel. 

... According to the National Immigration Forum, the average recidivism rate for undocumented migrants under Title 42 has been 27 percent, while under Title 8 the average has been 7 percent...more