Trump's Take on 'Title 42' Kept Migrants from Getting in Over Their Heads, But Biden's New Twist Is Set to Make Things 3x Worse for Everyone


During the COVID-19 pandemic, a section of federal public health law known as “Title 42” has been used as one method of fighting the illegal immigration crisis, allowing many illegal migrants to be summarily expelled.

Now, in the midst of a border disaster unlike any we’ve seen in decades, President Joe Biden’s administration is reportedly easing up on enforcement of the provision — and it could lead to even more migrants making the dangerous trek to the United States.

According to a report from Just the News, Customs and Border Patrol agents have been told Nicaraguan illegal aliens will no longer be deported under Title 42 as of Friday. With limited exceptions that relate to criminal history, Nicaraguans who enter the United States illegally will be released into the country.

The order hasn’t been made official in writing, but was instead directed to CBP agents via a conference call. Just the News’ Bethany Blankley reported that official orders in writing would be coming soon.

“Border Patrol agents and those in law enforcement told Just The News that the prohibition on deporting Nicaraguans will lead to a surge of Nicaraguans heading to the U.S., as well as many coming from other countries claiming to be Nicaraguans, knowing they won’t be deported under Title 42,” Blankley reported Friday.

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She also noted that Border Patrol agents have heard that Title 42 enforcement will end entirely in January, “which they fear will double or triple the numbers of illegal aliens coming across the southern border every month, numbers which have already reached record highs under the lax border security policies of the Biden administration.”

Title 42 of U.S. Code 265 is a 1944 public health law that states that, in times where “any communicable disease in a foreign country [where] there is serious danger of the introduction of such disease into the United States,” the surgeon general, through the president, “shall have the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate in order to avert such danger, and for such period of time as he may deem necessary for such purpose.”

In March of 2020, the administration of former President Donald Trump invoked the regulation due to the COVID-19 crisis to summarily expel any illegal immigrant caught trying to cross into the United States.

In January, however, a judge ruled Title 42 couldn’t be used against families or unaccompanied minors. Department of Homeland Security Secretary Alejandro Mayorkas issued official guidance in March announcing that the Biden administration wouldn’t seek to use the provision to deport either group, Just the News reported.

Will this make the border crisis even worse?

The administration has, however, kept Title 42 in place for other illegal immigrants. In September, the administration used it to deport thousands of migrants, mostly Haitians, who started a massive encampment under a bridge in Del Rio, Texas, just over the Rio Grande.

However, the decision to ease up on Title 42 for Nicaraguans could create a similar crisis. As the Miami Herald reported in September, the DHS believed much of the crisis in Del Rio was caused by misinformation fed to Haitian migrants.

“We are very concerned that Haitians that are taking the irregular migration path are receiving misinformation — that the border is open or that Temporary Protected Status is available to them despite the fact they are arriving long after the date that presents the deadline for TPS eligibility,” Mayorkas said during a media call, according to the Herald. “This is not the way to come to the United States.”

If Just the News’ report is accurate, Nicaraguans would have a real reason to flood the border — not just misinformation.

No reason for the decision was given in the report, which had yet to be confirmed elsewhere. However, the purported move came a week after Nicaraguan strongman Daniel Ortega declared victory in what President Biden called “a pantomime election that was neither free nor fair, and most certainly not democratic.”

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“The arbitrary imprisonment of nearly 40 opposition figures since May, including seven potential presidential candidates, and the blocking of political parties from participation rigged the outcome well before election day,” Biden said in a statement Nov. 7. “They shuttered independent media, locked up journalists and members of the private sector, and bullied civil society organizations into closing their doors.”

In September, Reuters reported there was already a significant exodus from the country. Heightened sanctions on the Ortega regime that Biden signed last week will only increase that pressure.

The timing could hardly be worse.

The reported easing of Title 42 sanctions comes after 192,001 illegal immigrants were apprehended trying to get into the United States in September, with over 200,000 apprehensions reported from June to August, according to The Associated Press. The fiscal year ended with a record 1.7 million encounters, the most ever recorded since the Border Patrol’s creation in 1924.

This isn’t just bad for border security. For migrants, the journey north is an arduous one that often finds families crossing inhospitable deserts and being guided by smugglers from criminal cartels who have been known to rape women and abandon young children. Deterrence is often just as important for them.

The Trump administration’s enforcement of Title 42 no doubt kept many from making the dangerous journey. Biden’s twist is likely to induce more to do so. That will just make things worse for everyone — as much as three times worse if the Border Patrol agents Blankley spoke to are correct.

For those with a legitimate asylum claim, there’s a place for that to be made, and that’s Nicaragua.

Meanwhile, the president’s vaccine mandate will likely diminish Border Patrol presence on the southern border. Just the News reported that about 3,900 agents have requested exemptions thus far from the mandate, although Blankley wrote they “don’t expect them to be granted.”

“Progressive disciplinary timelines issued for noncompliance indicate that these agents will likely be terminated by the end of the year unless a judge intervenes,” Blankley wrote.

This has, in other words, the makings of a perfect storm — one which the Trump administration precluded by enforcing Title 42. Like so many other times during the border crisis, however, don’t expect the Biden administration to notice how dark the clouds are until it’s far too late to prevent a new deluge.

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C. Douglas Golden is a writer who splits his time between the United States and Southeast Asia. Specializing in political commentary and world affairs, he's written for Conservative Tribune and The Western Journal since 2014.
C. Douglas Golden is a writer who splits his time between the United States and Southeast Asia. Specializing in political commentary and world affairs, he's written for Conservative Tribune and The Western Journal since 2014. Aside from politics, he enjoys spending time with his wife, literature (especially British comic novels and modern Japanese lit), indie rock, coffee, Formula One and football (of both American and world varieties).
Morristown, New Jersey
Catholic University of America
Languages Spoken
English, Spanish
Topics of Expertise
American Politics, World Politics, Culture