Title 8 in effect since 1940, but how does it work?

SAN DIEGO (Border Report) — With Title 42 expected to go away on May 11, Title 8 will continue to be used to remove migrants who do not have a legal basis to remain in the United States.

According to Border Patrol spokesperson Angel Moreno, Title 8 has remained in effect throughout the pandemic, even when Title 42 was instituted.

Title 8 is an order approved by the U.S. almost 83 years ago.

Title 42, which also dates back to World War II, is a policy from the Centers for Disease Control and Prevention issued to prevent the spread of disease. In 2020, it was reinstated by the Trump administration.

Title 42 stemmed the flow of migrants into the U.S. by having them expelled almost immediately after apprehension, preventing them from asking for asylum.

Before then, Title 8 had been the primary proviso implemented by the Border Patrol to send migrants back into Mexico, Moreno said.

“Legally speaking, it’s not an expulsion, it’s a removal under the provision of Title 8,” said Moreno. “It’s what we used in the past, and moving forward, if they lift Title 42 then that’s what we’ll be operating under.”

Title 8 carries penalties for migrants who are sent back.

“There’s an expeditious removal that we can process folks under which carry a five-year ban,” he said. “There’s also the reinstatement after a prior removal which carries a 20-year ban.”

Moreno said some of those who are sent back won’t be allowed in the U.S. for up to 20 years.

Title 8 does make for exceptions for people from vulnerable populations.

“Some folks that might be claiming a credible fear of persecution might be processed with a notice to appear,” said Moreno.

According to Moreno, a judge will then decide if the migrant can remain in the U.S.

On April 27, the U.S. Department of State issued a decree stating “the lifting of the Title 42 order does not mean the border is open.”

It goes on to say: “When the Title 42 order lifts at 11:59 PM on May 11, the United States will return to using Title 8 immigration authorities to expeditiously process and remove individuals who arrive at the U.S. border unlawfully. These decades-old authorities carry steep consequences for unlawful entry, including at least a five-year ban on reentry and potential criminal prosecution for repeated attempts to enter unlawfully. The return to processing under Title 8 is expected to reduce the number of repeat border crossings over time, which increased significantly under Title 42. Individuals who cross into the United States at the southwest border without authorization or having used a lawful pathway, and without having scheduled a time to arrive at a port of entry, would be presumed ineligible for asylum under a new proposed regulation, absent an applicable exception.”

The State Department has also said it will open regional processing centers across the Western Hemisphere to facilitate access to lawful pathways with the first facilities to be established in several countries, including Colombia and Guatemala,