What is Title 8? What to know about the nation's immigration law and border enforcement

Lauren Villagran
El Paso Times

When the Biden administration stops relying on Title 42 to expel migrants at the U.S.-Mexico border, U.S. authorities will return to enforcing the nation's immigration laws under Title 8.

Title 42 is a public health law invoked during the Trump administration to prevent border authorities from holding migrants in congregant settings, ostensibly to prevent the spread of COVID-19.

It's not immigration law. But in practice, Title 42 authority has been used to quickly expel migrants to Mexico or their countries of origin regardless of their COVID-19 status or the state of the pandemic. The authority has faced numerous legal challenges and is set to expire Thursday, when the national emergency declaration ends.

Once Title 42 expulsions end, border authorities will follow the laws created by Congress under Title 8.

A Customs and Border Protection officer pats down a Mexican migrant who was apprehended entering the U.S. without proper documentation in Sunland Park, New Mexico in late  March of 2023.

What is Title 8 immigration law?

The section of the U.S. Code known as "Title 8: Aliens and Nationality" contains all the country's immigration laws. Among its numerous chapters and subsections, the Title 8 section includes:

  • Restraints on who is admissible to the country or eligible for a visa.
  • Criminal penalties for crossing the border without inspection, or for reentering unlawfully after deportation.
  • Expedited removal of migrants who are deemed inadmissible.
  • The nation's asylum laws.

Title 8 guided the Border Patrol's enforcement strategies at the Southwest border pre-pandemic and is expected to underpin enforcement once Title 42 expulsions end.

What is Title 42, when does it expire?Here's what you need to know

When does Title 8 go into effect?

It's been in effect all along.

Agents in El Paso have been using Title 8 expedited removals alongside Title 42 expulsions. The former carries an immigration consequence, while the latter does not.

A Texas National Guard soldier turns over a migrant to a Customs and Border Protection officer after apprehending the migrant in Sunland Park,  New Mexico entering the U.S. without proper documentation in late March of 2023.

"When you are removed from the country (under Title 8), you are removed for five years or up to 20 depending how many times you enter illegally," said El Paso Border Patrol spokeswoman Valeria Morales. "If you want to apply for admission, you can’t."

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How is Title 8 applied at the border?

The Border Patrol has encountered 265,037 migrants so far in fiscal year 2023, October through March.

Of those encounters, 144,663, or 55%, were processed under Title 8. U.S. Customs and Border Protection statistics don't distinguish whether the Title 8 processing was for expedited removal or for asylum.

A Customs and Border Protection officer looks towards the Rio Grande from Sunland Park, New Mexico in late March 2023.

In December, Department of Homeland Security Secretary Alejandro Mayorkas said:

“Once the Title 42 order is no longer in place, DHS will process individuals encountered at the border without proper travel documents using its longstanding Title 8 authorities, which provide for meaningful consequences, including barring individuals who are removed from reentry for five years. These consequences include placing individuals in expedited removal, which allows DHS to quickly repatriate individuals who do not have a legal basis to stay in the United States."

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