The Trump-era order Biden is using to turn away most migrants

Over the past several weeks, images have emerged of crowded United States facilities filled with children who arrived at the country’s southern border with Mexico alone and in search of protection.

The scenes heaped pressure on Joe Biden’s administration, which has mobilised the Federal Emergency Management Agency (FEMA) to respond and authorised the use of military bases and other makeshift facilities to house the unaccompanied minors as their cases are processed.

But Biden and other US government officials have also told reporters that while an exception has been made for unaccompanied children – several thousand of whom remain in US facilities – the US-Mexico border is otherwise closed.

“The message is quite clear: do not come,” Homeland Security Secretary Alejandro Majorkas said in an ABC News interview last month. “The border is closed. The border is secure. We are expelling families. We are expelling single adults.”

In February alone, US authorities sent more than 72,000 people back across the southern border.

To do it, the Biden administration is using a public health policy first invoked by former President Donald Trump last year during the COVID-19 pandemic, under which US borders have been effectively sealed to most migrants and asylum seekers.

Here, in the first part of a series on the situation at the US-Mexico border, Al Jazeera explains how the process, known as Title 42, is being applied, how it factors into the recent increase in arrivals, and what immigration experts say the Biden administration needs to do now.

What is Title 42?

The Trump administration in March of last year invoked Title 42 – a public health provision in the US Code that has been on the books for decades – to allow US Customs and Border Protection (CBP) and other authorities to quickly refuse entry to most migrants without legal authorisation to enter the country.

The order, which did not apply to US citizens or permanent residents, or foreign citizens with valid travel document or visa waivers, “is necessary to protect the public health”, the US Centers for Disease Control and Prevention (CDC) said at the time.

“Individuals who are expelled do not receive an order of deportation, but CBP collects their biometrics and records their contact with the agency,” the American Immigration Council explains.

What effect did Title 42 have?

The use of Trump’s Title 42 policy made it impossible for most migrants and asylum seekers to enter or seek protection in the US, as thousands were quickly expelled to Mexico or to their home countries.

Between March and September 2020, nearly 205,000 people were expelled under Title 42 at the US southern border, while more than 190,000 were expelled in October, November and December of last year, according to CBP statistics.

“The legal obligation that the US has – domestic and international – to allow individuals to seek asylum is abrogated every day that this policy expels people at the border,” Karen Musalo, director of the Center for Gender & Refugee Studies at UC Hastings College of the Law, told Al Jazeera.

Is the Biden administration still applying Title 42?

Yes, but it has made an important change: While Title 42 still applies to most families and single adults arriving at the border, unaccompanied children are now exempt and are being taken into US custody.

A US judge ruled in November that the Trump administration could not turn back unaccompanied children under Title 42 and issued an injunction. Then, on January 29, a court issued a stay, essentially allowing the government to reimpose the ban on children – but the Biden administration chose not to.

On February 2, Biden also ordered a review of “Trump administration proclamations, rules, and guidance documents that have effectively closed the U.S. border to asylum seekers” as part of a wider push to reverse some of his predecessor’s most divisive policies.

How many people have been expelled using Title 42 under Biden?

In February, the first full month of the Biden presidency, more than 72,000 people were expelled at the southwest border under Title 42, of a total of 100,441 people who were taken into custody, according to CBP data.

The border agency says of those overall apprehensions, 19,236 people were in family units; 71,598 were single adults, and 9,597 were unaccompanied minors.

Are families being expelled?

Yes, but not all. Politifact reported that 7,900 people deemed part of family units were among those expelled under Title 42.

Axios also reported this month that between March 14 and 21, “an average of just 13 percent of nearly 13,000 family members attempting to cross the US-Mexico border were returned to Mexico” under the policy.

NBC News has reported that Mexico is not taking back some families with children age six and under at a certain area on the US border due to limited capacity.

“Our policy remains that families are expelled, and in situations where expulsion is not possible due to Mexico’s inability to receive the families, they are placed into removal proceedings,” a Department of Homeland Security spokesperson told Axios.

Where are people being sent?

Musalo said while Mexico generally takes back people from El Salvador, Honduras and Guatemala, it does not allow most migrants from other countries to return. Instead, the US sends those asylum seekers back to often dangerous situations in their home countries.

“For instance, in the midst of violence in Haiti, we see planeloads of Haitian asylum seekers being returned to Haiti,” she said. “This is very, very concerning.”

Is Title 42 encouraging people to cross the border over and over?

Tens of thousands of people have sought to enter the US this year, with US media reporting on Friday that more than 171,000 migrants were taken into custody along the southern border in March alone.

Danilo Zak, senior policy and advocacy associate at the National Immigration Forum, told Al Jazeera repeated crossings of primarily single adults from Mexico are driving up the number of overall arrivals. The recidivism rate between March 20 last year and February 4, 2021, was 38 percent, CBP recently reported.

“Under Title 42, because there’s so little processing, it’s really just about expelling people as quickly as possible,” Zak said.

“There are no additional penalties for repeat, unauthorised crossers. People are returned within an hour and a half to two hours rather than several days, meaning they can just try to walk back across the border again, or try to cross the border some other way.”

What happens now?

The Biden administration has said it plans to work to address the “root causes” of migration from Mexico and Central America, and provide more resources – and hundreds of millions of dollars in assistance – to help alleviate systemic problems in those countries. It continues to tell migrants and asylum seekers not to come to the US.

Meanwhile, Musalo at UC Hastings, which is involved in a lawsuit alleging the Title 42 policy is unlawful, said the outcome of that legal challenge is still up in the air.

Some observers have raised concerns about what it would mean to rescind the policy entirely, given how overstretched the US government already is with a recent influx of unaccompanied minors arriving at the border. But Musalo said the Biden administration has a legal obligation to act.

“When you have a legal obligation … it’s not an excuse to say, ‘hey it’s going to take us some time to get things in place.’ You have that legal obligation. You shouldn’t be returning people to persecution and you need to do what it takes to allow people in.”