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Title 42 was put into place in March 2020 by then-President Donald Trump to curb the spread of COVID-19 in the U.S.
The policy allows Border Patrol to send immigrants back to their home country without logging them into the immigration system in the U.S., meaning there are no repercussions to crossing the border again afterwards.
While the number of re-crossings has grown, the number of people reaching the U.S.’s southern border is growing in general, thanks to natural disasters and COVID impacts in people’s home countries.
Title 42 has become a hot topic, as the number of migrants crossing the U.S. southern border has risen.
The policy was enacted in 2020 under President Donald Trump in hopes of stopping the spread of COVID-19 at the beginning of the pandemic by sending people immediately back to their home country.
The policy was to be lifted at the end of May 2022, but now faces uncertainty, including the prospect of legal challenges and a push from Republicans who want President Joe Biden to keep the controversial immigration program in place to stem a surge at the border.
Tom Nelson, a Democratic candidate for U.S. Senate in Wisconsin, weighed in with an alternative view – that Title 42 is a cause of the crisis, not a solution for it.
"Title 42 has fueled the border crisis," he said on April 26, 2022. "In 2019, 7 percent of illegal border crossings were repeated crossings. Today the rate is 27 percent."
Is it true that the percentage of repeat crossings have nearly quadrupled, fueling the border crisis?
Let’s take a closer look.
Title 42 stems from a 1944 public health law aimed at preventing the spread of communicable diseases, according to an April 7, 2022 article from Voice of America.
It allows border enforcement agencies to remove migrants crossing into the United States, including those in search of asylum. That part is important, because migrants who reach the U.S. ordinarily have the right to apply for asylum if they can cite a credible fear of persecution due to race, religion, nationality, political opinion or membership in a particular social class in their home country.
In practice, once put in place by Trump, Title 42 allowed agents to send migrants who cross the border back to Mexico within hours, or to another country of origin within a few days, without any immigration hearing process taking place.
Those crossing the border never faced legal consequences for crossing, which would typically disincentivize people from re-crossing the border after being removed from the U.S.
So is Title 42 fueling the immigration crisis?
The Voice of America article noted that Title 42 created a "significant increase" in the number of repeat crossings, because people who were expelled simply tried to cross again.
When we asked Nelson’s team for backup for his claim, they shared testimony from an April 6, 2022 meeting of a U.S. House subcommittee focused on border security that made the same point.
Aaron Reichlin-Melnick, senior policy counsel for the American Immigration Council, testified that in fiscal year 2019, only 7% of people encountered at the border had previously crossed that year. But in the two years following the implementation of Title 42, that number jumped to 27%.
"This is due in large part to the fact that under Title 42, individuals expelled back to Mexico are not subject to any collateral consequence," Reichlin-Melnick said. "This lack of collateral consequences (other than the inherent risk of death in the journey), combined with the desperation and insecurity faced by people waiting at the border for the asylum process to restart, strongly incentivizes many migrants expelled under Title 42 to try again."
Collateral consequences for people crossing the border, he said later in his testimony, could include no opportunity to appeal immigration decisions, and no process to challenge a decision to expel someone from the U.S. after they cross the border.
Basically, because more people were being expelled from the U.S. without those consequences, they weren’t entered into Border Patrols databases, and therefore were free to try and cross again with no previously logged history.
The number of people being turned away since March 2020 supports that.
According to an April 27, 2022 report from the Pew Research Center, about 2.9 million encounters were logged between April 2020 and March 2022. Nearly 1.8 million of those encounters, or 61%, resulted in migrants being expelled from the U.S. under Title 42.
The remaining 1.1 million were apprehended under an existing immigration policy at the border, allowing them to stay within the country under a claim of asylum and a requirement to attend immigration court. Most of the people who made it into the U.S. under asylum claims since March 2020 have been unaccompanied children and migrant families with children.
But just because the number of re-crossings are high doesn’t mean that is the only thing driving high numbers of people crossing the southern border. According to an April 28, 2020 New York Times article, the number of migrants crossing the border is growing. In March, more than 221,000 people crossed the border, the highest for a single month in decades.
Another New York Times article, published in October 2021, suggests the high number of crossings is likely being driven by the pandemic response in migrants’ home countries, natural disasters and a lack of jobs.
So, while Title 42 may be prompting more repeat crossing attempts, inflating the numbers, there are still deeper, fundamental reasons for the surge at the border.
Nelson claimed "Title 42 has fueled the border crisis. In 2019, 7 percent of illegal border crossings were repeated crossings. Today the rate is 27 percent."
The numbers are on target, and repeated crossing attempts under Title 42 have undoubtedly increased, which inflates the numbers. The lack of repercussions means there is little incentive to not try again.
That said, in fact, more people are trying to come into the U.S. based on other reasons, typically related to their home country.
That leaves a claim that is partially accurate but leaves out important details or takes things out of context.
We rate it Half True.
Axios, "Schumer’s Title 42 dilemma," May 10, 2022
Tom Nelson, Twitter, April 26, 2022
Voice of America, "Explainer: What is Title 42 and its effect on US Southern Border?" April 7, 2022
Pew Research Center, "Key facts about Title 42, the pandemic policy that has reshaped immigration enforcement at the U.S.-Mexico border," April 27, 2020
Aaron Reichlin-Melnick, "Examining Title 42 and the Need to Restore Asylum at the Border," April 6, 2022
New York Times, "Republicans blame Homeland Security Secretary for spike in migration," April 28, 2022
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