The End of Title 42 Caps the Worst Year for Illegal Immigration in the History of the Republic

As the year winds down, the border is about to break wide open. In less than a week, the Biden administration’s last remaining tool to control illegal immigration, left over from the Trump administration, will be taken away.

Title 42, the public-health order invoked by President Trump during the pandemic that allowed immigration officials to quickly expel most migrants caught crossing the border illegally, will end on Dec. 21 by order of a federal judge.

Once Title 42 is gone, federal agencies at the border will have no choice but to process and release nearly every illegal border-crosser. It will represent a full return to the Obama-era “catch-and-release” policy. Border Patrol estimates they could see as many as 14,000 arrests per day in the coming weeks, which would totally overwhelm the border.

For migrants, there is now every incentive to do just that. Word of Title 42’s demise has almost certainly reached migrants in Mexico already, who now know that if they cross the Rio Grande, they will be allowed to remain in the United States, with work authorization, for years while they await the outcome of an asylum hearing.

Biden, who repealed or severely curtailed nearly every one of Trump’s border policies upon taking office in January 2021, has no plan for what to do now. Axios reported this week on a vague plan circulating among Biden officials for a temporary (five-month) moratorium on asylum, but the plan hasn’t been approved. It’s unclear how it would even be implemented with less than a week to go before Title 42 ends.

But even if the feds do impose a temporary halt to asylum, it’s too late. Thousands of migrants are crossing into the El Paso sector every day now, many of them having been bussed into Ciudad Juárez by the Mexican government. They are coming from large caravans that, having heard of the impending end of Title 42, formed for precisely this purpose.

Many of them are from Nicaragua, which means they can’t be deported to Nicaragua (the U.S. has no deportation agreement with the authoritarian dictatorship of Nicaragua’s president-for-life Daniel Ortega), and they can’t be expelled to Mexico, which refuses to take back Nicaraguans. So the U.S. is just letting them in, giving them a court date for an asylum hearing years from now, and releasing them. Never mind that many of these migrants, by their own admission to reporters, are economic migrants who have no valid asylum claims.

Back in August, my colleague Emily Jashinsky and I reported on the migrant encampments and shelters in the Mexican border towns of Matamoros and Reynosa across the Rio Grande from Brownsville and McAllen, Texas, respectively. Most of those migrants were Haitian, although they had been living in various South American countries for years, with legal status. They came to the border for a chance to get into the U.S. and pursue what one of them told us was “the American dream, a dream for all Haitian people.”

The reason so many had been waiting in Mexican shelters was that they feared being deported back to Haiti, where they hadn’t lived in many years, or because they had already tried to cross and been expelled back to Mexico under Title 42. They could not afford to pay the cartels for multiple river crossings, and so they were waiting, they told us, for U.S. policy to change.

Their wait is almost over. Once the threat of expulsion under Title 42 is gone, there will be little to hold them back. The border will become a chaotic, ungovernable disaster. We will likely see the appearance of tent-like refugee camps on the U.S. side of the border, as we saw in Del Rio, Texas, in the fall of 2021. To put the figure of 14,000 arrests per day into context, three years ago, during the 2019 border surge, President Obama’s DHS Secretary, Jeh Johnson, said that 1,000 apprehensions a day “overwhelms” the system and that he “cannot imagine” what 4,000 arrests per day would look like.

2022 was the worst year for illegal immigration in U.S. history. 2023 will be worse yet. As long as the Biden administration maintains its open-border policies, illegal immigration will increase, the cartels that profit from migrant smuggling will get rich, and the border will descend into chaos.

John Daniel Davidson is a senior editor at The Federalist. His writing has appeared in the Wall Street Journal, the Claremont Review of Books, The New York Post, and elsewhere. Follow him on Twitter, @johnddavidson.

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