It’s unfortunate that Title 42 has become a focal point in border security discussions. The CDC issued that order to reduce the risk that migrants entering the country illegally would bring COVID into the United States.

Chief Justice John Roberts’s temporary stay of an order to end the program — as part of a lawsuit from 19 Republican state attorneys general to keep it in place — is simply the latest eddy within the tempest of an unfortunate teapot: Title 42 has little — if any — relevance to our current border crisis, and certainly isn’t the answer. The real issue is Biden administration immigration policy.

It's helpful to recall there was no comparable border crisis when the CDC reported the first laboratory-confirmed case of COVID in the United States, or when it issued the Title 42 order.

And Title 42 didn’t prevent a surge in the number of illegal crossings.

The Border Patrol had more than 2.2 million encounters with illegal crossers at the Southwest border in fiscal 2022, the highest number ever recorded. Compare that to the 851,508 apprehensions in fiscal 2019, the last full year before the issuance of the Title 42 order.

Less than half — 1,054,084 — of the 2.2 million illegal crossers were expelled under Title 42.

Illegal crossers have a statutory right to apply for asylum, but that does not include permission to enter the United States unlawfully. The law says: “Any alien who … enters or attempts to enter the United States at any time or place other than as designated by immigration officers, … shall, for the first commission of any such offense, be fined … or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined … or imprisoned not more than 2 years, or both.”

A recent report from the DHS Inspector General indicates that most of the migrants the Border Patrol apprehends are not put in detention facilities or expelled under Title 42, but rather are processed for outcomes allowing them to be released into the United States.

I think the Biden administration caused the record surge in illegal crossings and that it intends to let it continue.


Published originally on The Hill.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at: