This past week, the expiration of “Title 42” was a big headline in the news.  And, while it is too soon to be sure, it is likely that the expiration may end up being a tempest in a tea pot (not that the MAGA folks will ever admit this reality).  But to the extent that this comes up as a topic, here is some basic (admittedly oversimplified) immigration law for non-lawyers.

One of the major development in law in the late eighteenth and early nineteenth century was the Napoleonic Code in France.  Prior to Napoleon, when laws were enacted, they were recorded and published.  But you would need to search through every annual volume to see what the statutes were on any given topic.  The concept behind the Napoleonic Code was that in addition to the annual volumes of that year’s new statute, there would also be a collection organized by topic of the current laws in effect on a topic.  It took time for the idea to catch on her, but eventually, the U.S. organized its laws into the U.S. Code.

But there is one problem with the code system — where do you place a law in the code that impacts multiple topics.  When it comes to immigration law, most laws impacting immigration are found in Title 8 — the part of the U.S. Code governing immigration and naturalization.  However, there is also a title of the U.S. Code (Title 18) that contains most of the federal criminal statutes — which is why there are some things that are not allowed by Title 8 which are simply improper immigration and not criminal.  And for this discussion, there is Title 42 which contains laws related to Public Health and Welfare.

For the purposes to Title 8, the big legal concept is “alien.”  And for legal purposes, an alien is not a creature from Alpha Centauri.  It is somebody who is not a U.S. citizen.  Title 8 contains three big categories of aliens who may come to the U.S.

First, there is the non-immigrant alien.  The primary form of non-immigrant alien is the tourist.  Supposedly, they are just coming to the U.S. for a brief visit (although there are some like diplomats who might be residing in the U.S. for an extended period).  While technically a non-immigrant alien needs to get a tourist visa, the U.S. has agreements with a lot of countries (including Canada and Mexico) that citizens of these countries do not need to pre-apply for a visa and are granted visas when they enter through a designated “port of entry.”  (In the nineteenth century, ports of entries really were ports.  Today, in addition to actual ports and airports, they also include designated border crossings.)  One of the issues with “illegal” immigration is that some individuals do come to the U.S. on “tourist” visas with the actual intent of living and working in the U.S.  But the need to keep better track of tourists overstaying their visit is a separate issue.

The second group are “regular” immigrants.  These are people who come to the U.S. on extended visas such as one of the categories of employment visas or student visas.  Ultimately, these individuals might become “permanent residents” and then U.S. citizens.  But, initially, they come here on renewable visa.  The problem, of course, is that there are a limited number of these visas.  In turn, for certain visas, in many parts of the world, there is a rather long waiting list to obtain them.  While for certain jobs or for student status, it is pretty easy to get a visa once you have been offered a job or accepted at a school, for people wanting a more general work visa, you may be waiting several years to get a visa.  And this waiting period creates an incentive for individuals to try to bypass the process.

But neither of these two categories is significantly impacted by Title 42, at least not the version of Title 42 which just expired.  When we are talking about Title 42, we are talking about a specific public health statute which allows the creation of an “emergency rule” to deal with public health issues related to immigration.  And during the COVID crisis (whether the rule was a true emergency response or a justification for something the Trump Administration wanted to do and just could not get done outside of the pandemic), the Trump Administration enacted a rule related to the third category of aliens — immigrants seeking asylum in the U.S.

Asylum is an exception to the general rule about the need to apply for an immigration visa before getting to the U.S.  To receive asylum, you need to prove that you are fleeing persecution.  For certain countries (the classic example prior to its collapse was the Soviet Union), the U.S. pretty much assumes that anybody claiming asylum is subject to persecution.  But for most counties, the would-be immigrant needs to prove asylum.   Because there are not enough immigration judges to quickly hear asylum cases, asylum seekers tend to (under Title 8) be “paroled” into the U.S. with a future hearing date.   However, if the asylum seeker wants to legally stay and work in the U.S., they need to return for the hearing.  But, there is a chance that the hearing will result in asylum being denied and the would-be immigrant returned to their home country.  So a significant number of asylum seekers simply disappear into the U.S. after their release and do not return for the asylum hearing.

In theory, a person seeking asylum is supposed to apply for asylum in the first safe country that they reach.  Of course, there are preferred countries to relocate to and (not just here but in Europe as well) refugees will sometimes evade ports of entry in interim countries to reach the desired country.  During COVID, the Trump Administration used the public health emergency to adopt a rule sometimes referred to as “Stay in Mexico.”  Under this rule, if a person presented themselves for asylum at a port of entry along the southern border, we would take their application for asylum.  But, rather than releasing them into the U.S., they were told that they would need to wait in Mexico because we did not want to take the risk that these asylum seekers might be bringing COVID into the U.S.

Now that the public health emergency related to COVID has expired so has the emergency rule that used the potential that an asylum seeker had COVID as a reason to deny parole into the U.S.   So we are back to the old system in which a request for asylum is a way to be authorized to enter the U.S. on a “temporary” basis while the request is being processed.  Of course, most “unlawful” immigration to the U.S. is not by people using asylum as a way to evade the visa requirement.  A significant portion is by individuals who overstay visas (either tourist visas or student visas) and reside and work here despite their visas having expired.  And another significant chunk is by people who never got permission to enter the U.S. and simply bypassed the ports of entry.  (Contrary to the right-wing spin on the issue, there are not a significant number of easy locations to enter the U.S. outside the ports of entry..  But people do try and there are also people smuggled through the points of entry.)

The expectation is/has been that the return to normal asylum rules will lead to a temporary surge of asylum applications.  It is unclear how big the surge will be, however.  Even before Title 42 clearly frivolous applications are routinely rejected at the border without a person getting a full hearing.  There might be some people with borderline applications who did not attempt to enter the U.S. due to Title 42, but there is no reason to believe that such applications were a large percentage of potential asylum seekers.

Ultimately, Title 42 has nothing to do with the bigger picture.  Whether seeking asylum or seeking some type of visa, it is the conditions on the ground in their home country that drives people to seek to come to the U.S.  If we want fewer asylum seekers from Latin America, we need to work to improve human rights conditions in the countries of Latin America.  And one driving factor of illegal employment immigration is that employers in the U.S. need more workers in certain industries than are available in the U.S. and we do not issue enough work visas to satisfy that demand.  Meanwhile, the home economies in Latin America are not strong enough to provide good paying jobs that would result in these immigrants staying in their home country.  Until we fix these issues, we will continue (as we have for over fifty years) to have a border crisis on our border with Mexico.