Title 42 continues to dominate headlines from the border to New York City, but the federal law has left many people confused about what exactly it is, why it’s ending on May 11, and what will happen when it goes away. 

Title 42 is a federal health measure currently enforced by the US Border Patrol. It currently allows the agency to kick certain migrants out of the US and return them to Mexico. This includes asylum seekers, who under international law, have the legal right to make an asylum claim in America.

Currently, migrants who cross the border illegally who are from Cuba, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua and Venezuela are amenable to Title 42 and could be sent to Mexico.

President Donald Trump invoked the law in 2020 at the beginning of the COVID-19 pandemic, asking the Centers for Disease Control to issue the policy. The Trump Administration made the case that keeping migrants out of the country would slow down the spread of infections and keep federal agents encountering migrants safe.

During the Trump administration, Title 42 was used indiscriminately to block millions of migrants seeking asylum — which caused many immigrant rights groups to sound the alarm and challenge it in court. Critics believed the measure was less about public health and more about keeping migrants out of the country.

When President Biden took over, he continued to enforce Title 42 with one important change from his predecessor. Biden said Border Patrol agents were only allowed to expel migrants from certain countries under his direction. That meant migrants seeking asylum from countries like Cuba and Venezuela could still seek asylum if they arrived at the border and stay in the US while their cases were decided in court — unless they had a criminal record. 

There has never been a set list of countries subject to Title 42. Biden has been able to add or change the list, making the enforcement of Title 42 complicated for Border Patrol agents. One day, citizens of one country could be allowed to make an asylum claim at the border by turning themselves over to a border agent, and the next they could be subject to removal under Title 42.

That’s exactly what happened with Venezuelans, as millions began fleeing the failing dictatorship in their home and traveled to the US-Mexico border. Most crossed the international boundary illegally, either on their own or with the help of smugglers, and simply surrendered to Border Patrol agents– an unprecedented sight for agents who in the past have always had to chase down migrants who enter the country illegally and attempt to get away from authorities undetected.

Many Venezuelans claimed they could not be sent back to their country of origin because they had a fear of being hurt, killed or imprisoned there.

The mass border crossings caused a crisis, overwhelming border towns such as El Paso and Del Rio in Texas. The Lone Star State has carried much of the burden of the border crisis, with 3.2 million migrants crossing into the state since the pandemic began, according to federal statistics.

Biden announced in October Venezuela would be added to Title 42 countries and its citizens expelled to Mexico. 

The change was possible because Mexico agreed to accept Venezuelans if the US expelled them, something the country had previously refused to do. Mexico is under no obligation to take in citizens from other countries, further complicating Title 42 enforcement.

The US can also repatriate migrants by flying them home, but it can’t use that method for migrants from Cuba and Venezuela as Washington, DC, has no diplomatic relationships with Caracas or Havana.

Title 42 is supposed to be a health policy — not an immigration law. It will end on May 11 at 11:59 p.m., when the Biden Administration ends all Covid-19 related policies.

Leading up to this, multiple legal battles played out in court, with opponents of Title 42, such as the ACLU and the Biden Administration, trying to terminate its use. Several times, Republican-led states, such as Texas and Arizona, have sued to keep it in place. 

Previously, courts have intervened at the last moment, ruling that Title 42 must be kept in place days before previous Title 42 deadlines. While it’s possible there could be another last minute intervention, most border experts agree the policy could finally be ending this week.

Not all migrants from Title 42 countries are expelled by the federal government. Much of the process is dependent on Mexico’s willingness to take migrants the US doesn’t want. In different areas of the border, the Mexican government has set quotas, only allowing the US Border Patrol to return so many migrants per day or per week. 

The agency will often fly migrants who it wants to expel from one border hot spot to a slower region to make sure it can actually kick out migrants without exceeding the quotas.

“Right now, if you cross into the border, you get sent back,” Landon Hutchens, spokesman for the US Border Patrol in El Paso, told The Post previously. “There’s not as much consequence.” 

Under Title 42, the Border Patrol makes a record that the migrant entered the country and been expelled, however, there is no legal consequence or punishment for doing so.

This has led to a huge number of repeat offenders, migrants who cross over illegally, are caught and returned to Mexico. Once there, some migrants make multiple attempts to gain entry to the US.

“After [May 11,] if your asylum claim is not accepted, then you get processed for removal — it’s a formal deportation. There’s a lot more risk of being rejected and there’s a lot more consequence after Title 42 [ends],” he said.

Many have called for the policy’s end, saying it’s illegal and that international law guarantees people the right to seek asylum.

Others, like Texas Gov. Greg Abbott, warns that the southern border could see up to 13,000 migrants per day crossing with the intention to stay in the country when the measure ends.

“With the Biden Administration ending Title 42 this Thursday, President Biden is laying down a welcome mat to people across the entire world, saying that the United States border is wide open,” Abbott said Monday morning. 

“It will lead to an incredible amount of people coming across the border illegally. President Biden’s open border policies are going to cause a catastrophic disaster in the United States.”

The White House says it is taking the steps to prepare for an anticipated surge when the policy ends, announcing it’s sending 1,500 troops to the border to help immigration agents. Additionally, the US Border Patrol announced its plan to deal with tidal wave of migrants expected in El Paso, ground zero for the border crisis.

It’s unclear exactly how many people have been expelled under Title 42 because there have been scores of people who have attempted to enter the country numerous times and been rejected again and again, but the US Border Patrol said it made an all-time high of more than 2.3 million arrests at the border in the last fiscal year. Forty percent of people who were expelled from the country were ejected under the rules of Title 42.

There’s no replacement for the policy, however, the Biden administration announced that Mexico will continue to take migrants from Cuba, Haiti, Venezuelan and Nicaragua when Title 42 ends.

The Border Patrol will continue to enforce Title 8, an existing law to deport migrants who enter the US illegally. Under that policy, migrants who enter the country illegally face legal penalties, including prison time and becoming ineligible to apply for residency or citizenship in the future.

The mayor of El Paso, and at least two other Texas cities has recently declared a state of emergency in anticipation of the end of Title 42, expecting a surge of migrants whom he says the city can’t financially support.

The West Texas city warned last week that it could start busing migrants away from the border and to other cities across America. El Paso already transported nearly 11,000 to New York last fall when it experienced another migrant surge.

The governor of Texas also said Monday he would step up his controversial busing program– sending “thousands more” to sanctuary cities including, New York City, Washington DC, Chicago and Philadelphia.