Opening the border for nonessential travel and for asylum seekers are matters governed by two different federal policies; however, they’re both often conflated.
Texas lawmakers — U.S. Sens. John Cornyn and Kyrsten Sinema, and U.S. Reps. Henry Cuellar and Tony Gonzales — held a news conference last week pushing legislation addressing immigration reform.
During the news conference held at the Hidalgo-Reynosa International Bridge, Cornyn spoke of the federal public health authority known as Title 42.
“This last year has been tough for a lot of people, not just in the United States, but in Mexico and elsewhere. And we’ve taken extraordinary steps to protect the public health, you’ve heard of Title 42, which has restricted cross-border traffic to so-called ‘essential’ trade and other traffic,” Cornyn said Wednesday.
However, travel restrictions on ports of entry are governed by a different federal authority known as Title 19.
“One has nothing to do with the other,” Aaron Bowker, the director of communications and public affairs liaison for the Office of Field Operations, said Friday, referring to Title 42 and Title 19.
Title 42 is a federal public health code used to underpin the Centers for Disease Control and Prevention order issued in March 2020. It’s been used to quickly expel migrants from the U.S. if they come “from countries where a quarantinable communicable disease exists” without the opportunity to request asylum.
“Title 19 is a DHS order for essential and nonessential travel at the land border only,” Bowker explained.
Specifically, the law states: “The Commissioner of U.S. Customs and Border Protection, when necessary to respond to a specific threat to human life or national interests, is authorized to close temporarily any Customs office or port of entry or take any other lesser action that may be necessary to respond to the specific threat.”
Last year, the Department of Homeland Security used that authority to restrict travel at ports of entry. May 2020’s order delineated who could cross, classifying them as “essential” travelers — returning U.S. citizens, people engaged in lawful cross-border trade, students, etc.
Many others, such as tourists and shoppers, were deemed “nonessential.” Border lawmakers are requesting to have these restrictions removed and allow people to enter the United States and boost local economies, like businesses that depend on Mexican clientele.
CBP, a governmental organization consisting of customs officers and border agents, is charged with enforcing both orders from the CDC and DHS, upheld by Title 42 and Title 19, respectively.
Once the administration lifts the orders, CBP personnel will follow protocols similar to the time before the pandemic. If only the CDC or DHS lifts their order, but the other remains in place, CBP would adjust, Bowker said.
During Wednesday’s news conference, Cuellar said he favored that scenario — sending asylum seekers back to Mexico under Title 42 but reopening the border under Title 19. U.S. representatives for the Rio Grande Valley, Democratic congressmen Vicente Gonzalez and Filemon Vela support a similar proposal, but it could prove to be a legal Catch 22.
Both Title 19 and Title 42 are based on the same public health emergency. Lifting one could potentially weaken the argument to keep the other in place.
Legal efforts through a lawsuit filed by the American Civil Liberties Union have served to systematically challenge the federal government’s application of Title 42. An order issued in November by a federal court in D.C. excluded children traveling alone without their parents exempt from expulsion.
Later, the U.S. government agreed to also allow certain vulnerable migrants into the U.S. through a streamlined process, also the fruit of an ACLU lawsuit.
The ACLU was contacted for comment but a response was not received.
Since the president took office, Title 42 restrictions were nearly removed, twice, but continue to be in place. Politicians urge an end to them, though their advice differs.
Cornyn, Cuellar, Gonzalez and Vela all urge for a kind of transition from Title 42. However, they are split on longer-term immigration reform. While Cornyn and Cuellar support the Bipartisan Solutions Act of 2021 they were rallying behind Wednesday, Gonzalez and Vela referred to it as a Republican bill. Vela went further and said, “only two Democrats support it, and they are anti-immigrant, border wall supporters.”
It remains unclear when either policy based on Title 42 or Title 19 will change.