EL PASO, Texas (Border Report) – Title 42 is ending on May 23, but the debate goes on whether the border public health policy should’ve ever been put in place and what will happen once it’s gone.

“This order was a pretext to close the border to Black, brown and Indigenous people,” U.S. Rep. Nanette Diaz Barragan said in a Wednesday hearing of the House Committee on Homeland Security. “Leading medical experts consistently argued there was no public health justification to close the border to asylum-seekers.”

Others say the post-Trump migrant surge will ramp up when border agents lose a tool that has allowed them to swiftly expel 1.7 million unauthorized migrants since March 2020.

“Title 42 has allowed us to stem the tide. If we take Title 42 away, we are headed for 3 million (apprehensions) this year […] our nation cannot sustain this,” said U.S. Rep. Clay Higgins, R-Louisiana. “Right now, it’s a legal tool that is needed on the border. If we take it way, I’m afraid the demise of our nation will accelerate. What we’re witnessing right now will become worse and worse.”

Just like immigration advocates challenged Title 42 in court when the Trump administration started it, Republicans are now trying to get a federal judge to force President Joe Biden to keep it in place.

The federal lawsuit against ending Title 42

“This suit challenges an imminent, man-made, self-inflicted calamity: The abrupt elimination of the only safety valve preventing this administration’s disastrous border policies from devolving into an unmitigated chaos and catastrophe,” says the suit filed in U.S. District Court in Lafayette, Lousiana.

On Wednesday in Capitol Hill, expert witnesses and Democratic lawmakers said doing away with Title 42 is the right thing to do. There’s no proof it helped prevent cross-border transmission of COVID-19, the pandemic is largely under control now and the policy continues to endanger asylum-seekers, they said.

“We applaud the Biden administration’s decision to terminate the Title 42 policy. It is not and never was a justifiable public health response to the pandemic, as epidemiologists and medical experts have repeatedly confirmed,” said Kennji Kizuka, senior policy analyst for Human Rights First. “Instead, the Title 42 policy has been used to evade U.S. asylum laws and treaty obligations.”

Advocates have documented hundreds of crimes against migrants expelled under Title 42 and say Border Patrol “encounters” (2 million in calendar year 2021) have ballooned because those migrants attempt multiple illegal crossings because ports of entry remain closed to lawfully apply for asylum.

Border law enforcement officials like Cochise County (Arizona) Sheriff Mark Dannels, said Title 42 should stay in place until the federal government comes up with a new policy to effectively manage migration flows.

U.S. Rep. Veronica Escobar, D-Texas, at the Homeland Security Committee hearing on Wednesday. (Courtesy HSC)

He says his department is spending $17,000 a week to patrol areas where an increasing number of migrants – and drug cartel members using them as cover – is passing through. He said the situation in his mostly rural enclave of the border is “at a level we’ve never seen.”

U.S. Rep. Veronica Escobar, D-Texas, said migration patterns have been changing since the Obama administration.

“The truth is: This is complicated. It’s not easy. There is no one who wants to see security and dignity more than those of us who live on the border,” the El Paso Democrat said. “But addressing migration only at the border is a signal of failure.”

She added neither building more border wall nor expelling migrants under Title 42 has stopped unauthorized migration, and she advocated for U.S. immigration reform.