What is Title 42 and how has it become a revolving door for migrants?

A COVID-19 pandemic-related health order known as Title 42 has created a revolving door at the southwest border for some migrants.

Migrants from countries like Mexico, Guatemala and Honduras generally face a quick expulsion.

Others from countries like Cuba, Venezuela and Nicaragua get a fighting chance in the nation’s clogged immigration courts.

It wasn’t supposed to work this way in March 2020 when the pandemic order was established. But because there are no legal consequences for multiple attempts to cross the border, some migrants try again.

So 9 out of 10 Mexicans caught by the Border Patrol this year were quickly sent back under Title 42, according to data from the U.S. Customs and Border Protection, the parent agency of the Border Patrol.

The reverse is true of Cubans. Cuban migrants were allowed into the U.S. under regular immigration law about 97% of the time this year. But they must fight their cases in federal immigration courts, where the backlog is now 1.9 million. Cubans have now arrived in the U.S. this year in numbers surpassing the exodus of 125,000 from the port of Mariel in 1980.

Cubans, Nicaraguans and Venezuelans largely come into the U.S. under regular immigration law because the U.S. has poor diplomatic relations with those countries, noted Adam Isacson, a security analyst with the Washington Office on Latin America.

The Mexican government plays a huge role, too. Of those expelled in July, 99% came from four countries whose citizens Mexico allows to be expelled back across the border: Mexico, Guatemala, El Salvador and Honduras, Isacson said in a recent report.

“Looking at the data, what I see is we have the worst of both times,” said Theresa Cardinal Brown, managing director of immigration and cross-border policy for the Bipartisan Policy Center in Washington, D.C. “We have higher levels of Mexican migration that’s repeat-crossers. And we have this new phenomenon of migration from lots of different countries in the world.”

Title 42 was issued by the Centers for Disease Control and Prevention amid controversy that other persons potentially infected with COVID-19 could still cross. The CDC lifted the order and set that date for May 23 this year. But a lawsuit in a Louisiana federal court prevented that. That suit continues.

In the interim, Title 42 has been used more than 2 million times to quickly expel certain migrants. Immigration advocates charge it prevents due process, especially the due process of an asylum petition. Others say not every migrant coming to the border seeks asylum. Some simply seek a job.

Still, others argue the logic of the public health order — based on the COVID-19 pandemic — no longer applies with so many economies opening up.