End of Title 42 sets off a political war that will define the 2024 presidential elections

With only hours before Title 42 expires, a new era in US immigration policy will begin this Friday, when the Border Patrol will no longer have the ability to deny migrants the right to claim asylum.

On Thursday, thousands of people were sitting in makeshift camps along the US-Mexico border, waiting for the best possible moment to try and cross. Some plan to turn themselves in to the authorities, while others wish to slip through one of the 26-foot-high fences that separate the southern states from Mexico.

Far from these dusty camps, an all-out political battle is being waged in Washington over one of the issues that will define the 2024 presidential campaign cycle. The hardest-right wing of the Republican Party is painting an apocalyptic picture of “open borders” and a veritable “invasion” of migrants.

In the border cities of Ciudad Juárez and El Paso, there is much uncertainty about what lies ahead. This crossing is one of the hot spots along the 2,000-mile-long border, with communities on both sides holding their breath for what will take place on Friday.

The imminence of the end of Title 42 has already taken a toll. A week ago, about 6,000 individuals were being intercepted on a daily basis. This number has risen to 8,000 in recent days. This past Wednesday, 10,400 people attempted to migrate irregularly, while US authorities estimate that there are some 150,000 people in northern Mexico waiting to cross the border.

In a press conference on Wednesday, Secretary of Homeland Security Alejandro Mayorkas made it clear that the “next days and weeks could be very difficult.” He noted that the Biden administration has sent reinforcement to assist the authorities on the ground, bringing the total number of security officials along the border to 24,000. He also repeated a familiar message: “The border is not open.”

While in office, Donald Trump dusted off this law from the 1940s and utilized it as a health regulation during the pandemic. It allows for the immediate return of migrants who arrive at the border in search of asylum, under the pretext of stopping the spread of infectious diseases. It has been in force for the past 40 months and has resulted in 2.6 million expulsions.

When it expires at midnight EST on Thursday, the old Title 8 – which allowed the Obama administration (2009-2017) to deport more than three million undocumented immigrants in eight years – will go into effect. It will, however, have some modifications from when it was previously utilized. For instance, those who wish to request asylum will be obliged to do so through a mobile application from any country along their route. If they arrive in the United States without having fulfilled this requirement, they will be deported, with a ban on trying again imposed for a period of at least five years. If they are caught trying to cross again during the duration of the ban order, they could face prison time in the US.

There are four countries in the hemisphere with which the United States does not maintain diplomatic relations, whose nationals will not be returned to their places of origin. These nations are Cuba, Nicaragua, Venezuela and Haiti. Two planes bound for Guatemala and Honduras left this Wednesday from the El Paso International Airport, carrying individuals who have been deported.

If an asylum application is accepted, the individual claiming asylum can be taken to a detention center while their case is being resolved, or receive an appointment with a judge somewhere in the United States. Said appointment is written in a document that will allow them to travel freely around the country. The wait time for a date can vary greatly, from several weeks to several years. Currently, there are two million unresolved cases, with immigration judges totally overwhelmed.

The transition from Title 42 to Title 8 will weigh heavily on President Joe Biden as he seeks re-election next year. Much rides on the political success of this policy change. The border has become one of the issues that most concerns Americans, with the Republican Party eager to use fears of migration to gain a foothold among the electorate. This Thursday, members of the GOP in Congress introduced their own proposal for the border. However, while they hold a slim majority in the House of Representatives, the Democrats have control of the Senate – hence the law has little chance of passing. Even if moderate Democrats helped it through, President Biden would likely veto it.

The 213-page Republican-drafted Border Security Act would – among other provisions – provide funding to restart construction of a border wall and improve monitoring technology along the southern and northern borders of the United States. It would also allocate millions of dollars to increase the number of Border Patrol agents, while instituting other changes that Republicans say would streamline the asylum process.

On the other hand, controversial independent Senator Kyrsten Sinema – who represents Arizona, a border state – has spent months rallying support for a bill that would essentially give Biden a new version of Title 42 that need not be tied to a health emergency. The senator – who will seek re-election next year, after having previously won her seat while running as a Democrat – knows that immigration control is a major campaign issue in her state. She has introduced her bill alongside Senator Thom Tillis, a Republican from North Carolina.

The proposed legislation would facilitate the deportation of irregular immigrants for a two-year-long period “without the need for a hearing or review” of their cases. Many within the Democratic Party are fiercely opposed to this, as it would resume the expulsion of unaccompanied minors – a policy established under Trump that was changed by the Biden administration due to humanitarian concerns. The law proposed by Senators Sinema and Tillis requires 60 votes to be approved in the Senate… and it has been gaining some ground.

A sizable bloc of Republicans support it, as well as some moderate Democrats – such as Senator Joe Manchin of West Virginia – who are looking to toughen up their position on immigration as they try to secure re-election in conservative states.

Democratic Senator Sherrod Brown of Ohio is another voice who has broken with the president on this issue. He is also proposing that Title 42 be extended for another two years.

“We need more resources at the border,” he told reporters. “That means everything from military people at the border, police at the border, inspectors at the border, mental health professionals at the border to deal with this situation. It’s troubling. And as I said, I don’t think the presidents of either party have really stepped up on this.”

On the other hand, Senator Mark Kelly – a former astronaut who represents Arizona, which is also a swing state like Ohio – has backed away from Sinema’s proposal, which he previously supported. “We have to look for other options… [for now], we need to guarantee the necessary resources for what will happen after May 11,” he stated.

The political fray reaches far beyond Washington. The reaction of the states along the border with Mexico has been mixed. Texas Governor Greg Abbott – an anti-immigration hardliner – has sent a tactical force to strengthen surveillance in migratory corridors. His state party is also pushing a law in the Texas legislature that would make it a crime for undocumented people to enter Texas from Mexico.

Oblivious to all the political infighting that will decide their future, on Thursday morning, the last migrants under Title 42 passed into the United States from Ciudad Juárez. Hundreds of them had been waiting for days in front of a gate at the border wall. Others, meanwhile, haven’t stopped arriving at the beach along the Rio Grande, which has been reinforced with barbed wire since Tuesday. The last to arrive have continued their pilgrimage by foot. By walking a few miles to the east, they come across gate 42 – a reminder of the current law. They gather there, in the final hours before it ends.

Sign up for our weekly newsletter to get more English-language news coverage from EL PAÍS USA Edition