In April 2020, the Trump administration ordered immigration enforcement agencies to expel those apprehended along the border under 42 U.S.C. § 265 to combat the pandemic. That statute allows the government, in whole or in part, to close the border to prevent the spread of communicable disease, with some theoretical legal ambiguity. Illegal immigrants apprehended under Title 42 are quickly expelled by Border Patrol, which is a big change from earlier policies to mostly punish unlawful border crossers with detention and criminal charges under immigration law, which is Title 8 of the U.S. Code.
The Biden administration has kept Title 42 in place and, relatedly, is struggling mightily with large numbers of border apprehensions of illegal immigrants. Many conservatives are blaming the Biden administration for border policies that have boosted the flow of illegal immigrants and many liberals, fearful of an escalation in border chaos, are supporting harsh enforcement measures like Title 42. The problem is that Title 42 can explain a large part of the surge of illegal immigrant apprehensions. If the Biden administration wanted to reduce the flow across the border, it would end or reduce the scope of Title 42.
There have been several surges of apprehensions along the border in recent years, but they have mostly been of immigrants from countries other than Mexico (OTM), mostly from the Northern Triangle countries of Central America (Figure 1). For instance, the big surge in 2019 was comprised of Central Americans while the number of Mexicans coming remained constant. That’s because Central Americans and Mexican face different incentives. In 2019, Mexicans faced so-called enforcement with consequences that punished them for crossing the border illegally. The U.S. government held them in detention for long periods of time, charged them with crimes, and eventually removed many of them into the interior of Mexico. Those policies increase the cost of immigrating illegally, especially the opportunity cost.
Title 42 reduced the opportunity cost for Mexicans to come illegally. Instead of being detained for long periods of time, deported deep into Mexico, or facing other consequences, Title 42 allowed Border Patrol agents to essentially push them back over the border into Mexico – sometimes within hours. Title 42 sounds tough, like Judge Dredd style street justice that immediately enforces the law, but it actually lowers the cost of breaking immigration law for the unlawful immigrants. That, in turn, incentivized a huge surge in illegal immigration from Mexico.
The increase in Mexican illegal immigration after the implementation of Title 42 was tremendous in historical perspective. Mexican went from 62 percent of all apprehensions in March 2020 to 82 percent in May 2020, the first full month of Title 42. The numbers of Mexicans apprehended climbed from 21,313 in February 2020 to a high of 70,845 in May 2021. The percentage of Mexicans declined over time as the number of Central American eventually climbed more quickly, but there was a large increase in Mexican apprehensions (Figure 1). One cannot look at Figure 1 and simply dismiss the plausible theory that it caused the recent surge in Mexican illegal border crossers.
If the pre-Title 42 trend of Mexican apprehensions (October 2017-February 2020) had continued in April 2020 then there would have been about 400,000 fewer apprehensions through the end of July 2021 – all Mexicans. In other words, keeping Title 42 off the books for Mexicans (at least) would have likely reduced the total number of border apprehensions by about 25 percent through the end of July 2021 and the number of Mexican apprehensions by 45 percent. Other factors control the number of Central Americans who are apprehended.
It’s important for the Biden administration to get control of the border. Reducing the number of Mexican apprehensions is the easiest way to reduce the border chaos. Here are a few small actions the Biden administration could take to increase border control:
- Ending Title 42, at least for Mexicans, in the short run.
- Increasing the number of H‑2A and H‑2B guest worker visas by as much as possible by reducing the cost and regulatory requirements. This will increase the number of Mexicans who will work in the program in the longer run, further reducing pressure on the border. This will eventually make harsh enforcement unnecessary.
- Reforming the guest worker visa system so that many more can be issued to Central Americans without reducing the number available for Mexicans. This will reduce the flow of Central Americans in the long run.
