A public health emergency rule has allowed the Trump and Biden administrations to quickly expel migrants and deny them access to asylum at the border since March 2020, during the coronavirus pandemic.
The restriction, known as Title 42, has become the most effective way for officials to manage a high migration cycle at the US-Mexico border.
However, in November, a federal judge decided that the program had to end soon. Nineteen states, mostly Republican-ruled, took the matter to the Supreme Court, arguing that canceling that order could trigger a surge in migration that could strain their resources.
This Tuesday, the Supreme Court ruled that it will hear the arguments of the case in February and that Title 42 will remain in force until it issues a ruling.
The number of migrants who have crossed illegally into the United States at the southern border during fiscal year 2021 was the highest on record since at least 1960, and was followed by another record year in 2022.
Title 42 has applied in theory to all, but in practice it has not been used uniformly.
That’s due to humanitarian exemptions offered by the Biden administration and operational restrictions, such as a lack of space to house migrants or the US government’s inability to repatriate people from certain countries due to diplomatic issues.
Since the Biden administration began, more than a million people have been exempted from Title 42 and have been admitted to the United States on a temporary basis although at some point they will face removal in immigration court.
Others have been arrested and detained or expelled under other laws.
Inconsistency in the use of Title 42 and persistent legal challenges have resulted in a confused and chaotic approach to border security.
Whether someone is allowed to stay in the United States at least temporarily or is returned immediately under the public health rule has varied from day to day, even from hour to hour, and also from one border crossing to the next.
Migrants do not face any penalty for crossing illegally if they are removed under Title 42, but under border enforcement policies, that is not the case.
