EL PASO, Texas (Border Report) – Before there was Title 42, border agents used Title 8 of the U.S. Code to send back hundreds of thousands of migrants who had come across the border without authorization.

The law allowed for the expedited removal of migrants who did not show a legal basis to remain in the country.

“Title 8 was the only thing you had to work with. (President) Obama put 723,000 under Title 8. Most of them, more than 500,000, were given voluntary return. We caught you, we processed your and sent you back,” said Muzaffar Chishti, senior fellow at the Washington, D.C.-based Migration Policy Institute. “But most of them were from Mexico. Voluntary returns are easy with Mexicans, especially single Mexicans” whose country cannot deny them entry.

Migration flows began changing from 2012 to 2014. More Central Americans were crossing between ports of entry seeking a better life. “You can’t do a U-turn to Central Americans. If you came and you were not Mexican, you had to be processed,” Chishti said.

Fast-forward to 2019 through 2022 and the flows have further evolved, with a cluster of citizens from Venezuela, Cuba and Nicaragua – countries to which the U.S. does not directly deport ineligible migrants – comprising a majority of migrant apprehensions any other month.

That means when Title 42 expires as early as next Tuesday and border agents can no longer expel people on public health grounds, an increase in migrant releases is likely.

“The problem is, it’s too late, too little,” said Victor M. Manjarrez Jr., director of the Center for Law and Human Behavior at the University of Texas at El Paso. “Title 8 requires a court system, a judicial system to do a process for people before you deport them. And what we’re seeing right now is the federal government simply not having the resources. The flow has outpaced the capacity of the resources.”

Manjarrez, a former Border Patrol sector chief in El Paso and in Tucson, Arizona, agrees the federal government will focus Title 8 deportation authority on single adults starting next week. “There’s no bed space, no detention space because family units and minors are vulnerable (populations) and there’s not enough facilities. You will see that with single adults, you will see that with Mexican nationals but that’s not the biggest population” anymore, he said.

In the past two years, the Biden administration has dealt with a surge of 4.4 million migrant encounters by expelling half under Title 42 authority and releasing on parole most of the rest under Title 8.

“Even under Trump, the numbers became so high that they didn’t have enough detention space, so they had to release you. That became quite the norm,” Chishti said. “We were expelling everyone in 2020 and we were about (50-50) in 2021. That number has become more pronounced; as of July, the Title 8 numbers were outpacing Title 42 numbers 55-45. And the big change now, the most dominant way to treat people at the border under Title 8 is parole.”

Humanitarian parole is not asylum and migrants petitioning for that benefit must pass a credible fear interview at the border before being released with a notice to appear in immigration court later. Credible fear means the migrant is afraid of persecution or torture if returned to his or her country. Asylum itself is later granted to those who prove they’re persecuted for their political views, religion, race or other factors. Chishti said being afraid of crime in your city, fleeing poverty or simply belonging to one political party usually doesn’t cut it.

Both experts agree that transnational criminal organizations control migrant smuggling from Mexico to the United States and are coaching their charges on how to manage such a process.

“What we’ve seen not only in El Paso but in South Texas is the human smugglers have exploited that process. They’re actually telling the individuals, ‘If you get arrested it’s okay because in 48 hours you’ll be released and we’ll pick you up at the bus station,’” Manjarrez said. “When you are a smuggler and you can guarantee certain things, it’s going to be very profitable. You can actually charge more.”

Chishti said smugglers gaming the process becomes a pull factor for more migration. “The smugglers tell you, ‘Well, you won’t get a hearing for seven years, and then you can appeal and only then they kick you out,’” he said, adding that MPI has long recommended that the federal government increasingly use asylum officers to make determinations on claims rather than letting the overburdened immigration judges handle them all.

The federal government in May published an interim final rule on how this process will work. It also designated Boston, Los Angeles, Miami, New York, Newark and San Francisco as the pilot sites.  

“An asylum officer knows the countries’ conditions, is less adversarial and can make this process more efficient,” Chishti said. “This is being implemented but very slowly; with a pilot program in six cities. […] The challenge is how ramped up is the administration going to put this new rule into effect. If it is implemented as intended, then the process should flow smoothly.”