What you need to know about Title 42

The public health order that quickly expels migrants to Mexico was launched early in the pandemic. The Biden administration plans to end its use May 11.

By Uriel J. Garcia, The Texas Tribune | 5/9/2023, 12:01 p.m.
For more than three years, the federal government has turned away migrants at the U.S.-Mexico border, including those who are …
Migrants who had been sent across the border to Ciudad Juárez, across from El Paso, waited at the Juarez Migrant Assistance Center in 2021. Credit: Paul Ratje for The Texas Tribune

For more than three years, the federal government has turned away migrants at the U.S.-Mexico border, including those who are seeking asylum, using a public emergency health order known as Title 42. It was launched by the Trump administration at the start of the pandemic and continued under the Biden administration.

Title 42 has been the subject of different court rulings, but as of now, the Biden administration is scheduled to lift the health order on May 11.

Here’s what you need to know about the law.

What is Title 42?

Title 42 is part of the Public Health Service Act of 1944 aimed at preventing the spread of communicable diseases in the country. According to the law, whenever the U.S. surgeon general determines there is a communicable disease in another country, health officials have the authority, with the approval of the president, to prohibit “the introduction of persons and property from such countries or places” for as long as health officials determine the action is necessary. That authority was transferred from the U.S. surgeon general to the director of the CDC in 1966.

Congress approved a similar law in 1893 during a cholera epidemic that gave the president authority to exclude people from certain countries during a public health emergency. It was used for the first time in 1929 to bar people coming from China and the Philippines during a meningitis outbreak.

Why was it activated?

The Trump administration invoked Title 42 for the first time since its creation in March 2020 as a way to help stop the spread of COVID-19 in immigrant detention centers, where many migrants are placed after they arrive at the U.S.-Mexico border.

According to The New York Times, Stephen Miller, a senior adviser to former President Donald Trump, had pushed the idea to invoke Title 42 at the U.S.-Mexico border as early as 2018, long before COVID-19 emerged.

As COVID-19 cases rose in the U.S., then-CDC Director Robert Redfield enacted Title 42 to seal the land borders with Canada and Mexico for migrants seeking asylum on March 20, 2020. The Associated Press reported that then-Vice President Mike Pence ordered Redfield to enact Title 42 over the objections of CDC scientists who said there was no evidence that it would slow the virus’ spread in the U.S.

Dr. Anthony Fauci, the nation’s top infectious disease expert, has said that immigrants are not driving up the number of COVID-19 cases.

How many migrants have been removed under Title 42?

Since March 2020, immigration officials have used the health order more than 2.7 million times to expel migrants, many of whom have been removed multiple times after making repeated attempts to enter the U.S. at the southern border.

Under Title 42, the recidivism rate — the percentage of people apprehended more than once by a Border Patrol — increased from 7% to as much as 27%.

A quarter of migrants apprehended at the border have crossed more than once

Republican lawmakers have blamed President Biden for the record number of migrant apprehensions along the border. But immigration researchers say the increase can, in part, be attributed to an increase in repeat crossers.

During the Trump administration, immigration agents expelled all types of migrants; the Biden administration has instructed agents to exempt unaccompanied children from Title 42. When agents apprehend unaccompanied children, they are placed in a federal shelter or a state-run facility until they are reunited with a family member in the U.S. or until they find a sponsor.

While most migrants are sent across the border to Mexico under Title 42, others are returned to their home countries. Immigration officials also have the discretion to allow certain migrants to enter the country if there are “significant law enforcement, officer and public safety, humanitarian, and public health interests.”

Is every migrant expelled under Title 42?

No. In order for a migrant to be expelled from the country under Title 42, Mexico or their home country must have previously agreed to accept them. Mexico has accepted migrants from Mexico, Guatemala, Honduras, El Salvador and Venezuela.

If a migrant suspected of crossing the border illegally can’t be expelled under Title 42, immigration agents process them under Title 8, the process that Border Patrol agents have historically used.

Under Title 8, undocumented immigrants can be criminally prosecuted for attempting to enter the country illegally — the charge is usually a misdemeanor, but it can be elevated to a felony if they have previously been charged for attempting to enter the country. Migrants are typically deported after serving their sentence.

Border Patrol agents can also move to expedite a migrant’s deportation without going to court.

Migrants can request political asylum during this process, and immigration officials have the discretion to allow migrants to remain in the country without being detained as their asylum cases are pending.

Currently, the average wait time to receive a final decision on an asylum case is five years.

What’s the status of the legal fights over Title 42?

The public health order has been the subject of lawsuits in federal courts across the country.

In March 2022, U.S. District Judge Mark Pittman in Fort Worth ruled in favor of Texas and ordered the Biden administration to stop exempting unaccompanied children from Title 42 expulsions. That same day, a federal appellate court in Washington, D.C., reaffirmed a lower court’s ruling in a separate case that it’s illegal to expel asylum-seeking migrant families to countries where they could be persecuted or tortured.

After the CDC announced that it was letting Title 42 expire, Arizona and 21 other states filed a federal lawsuit on April 3, 2022, in the Western District of Louisiana, asking a judge to stop the government from lifting Title 42. Texas filed a separate lawsuit later that month, seeking the same thing.

Both lawsuits argue the Biden administration violated administrative procedural laws and that if Title 42 is lifted as planned, it could lead to chaos at the border.

In May 2022, District Judge Robert R. Summerhays, an appointee of former President Donald Trump, temporarily blocked the Biden administration from winding down the use of Title 42.

Another federal judge, Judge Emmet Sullivan of the U.S. District Court in Washington, D.C., handed down an opposite ruling in November 2022 and blocked the federal government from continuing to use Title 42.

The Arizona-led coalition attempted to intervene in the Washington lawsuit, which brought the case to the U.S. Supreme Court — which scheduled arguments in the case, then canceled them in February without an explanation.

The high court's move came after Biden administration filed a brief saying the case would be moot because the federal government planned to end the national public health order that allowed it to invoke Title 42.

What happens if Title 42 is ended?

If the administration lifts Title 42 as planned this month, Border Patrol agents are expected to return to using Title 8 to process migrants.

Last year, before the Louisiana judge blocked the Biden administration from ending Title 42, the administration released a six-part plan to transition away from the policy.

Migrant crossings at the Southwest border

In March, U.S. Customs and Border Protection said it had 162,317 encounters with migrants at the Southwest border. Around 46% of the March crossings were processed under Title 42, a public health order that went into effect early in the coronavirus pandemic and allows immigration officials to quickly expel migrants back to Mexico. It is expected to end on May 11.

As part of that plan, migrants who were in federal custody would be vaccinated for COVID-19, 600 additional U.S. Customs and Border Protection agents would be deployed across the southwest border and the capacity of federal holding centers would be increased from 12,000 to 18,000.

The Biden administration has announced various policy changes in anticipation of Title 42 lifting.

To discourage migrants from rushing across the border to seek asylum, the government since January has urged them to use CBP One, a cellphone-based application that allows people to request asylum from their home countries — or from Mexico — and schedule an appointment with immigration agents at a U.S. port of entry. The app offers 740 appointments per day across the nearly 2,000-mile southern border.

In April, the administration also announced plans to open processing centers in Colombia and Guatemala to allow qualifying migrants to legally enter the United States, Canada or Spain without coming to the U.S.-Mexico border. It also unveiled a new family reunification program for people from El Salvador, Guatemala, Honduras and Colombia: People from those countries will receive background checks before immigration agents determine on a case-by-case basis if they are eligible to be reunited with family already in the U.S.

Earlier this month, the administration announced that it plans to send 1,500 U.S. troops to the border to help immigration agents on the ground as Title 42 ends.

If migrants don’t use one of those options, the administration announced that it will ramp up deportations of people at the border — they could be slapped with a five-year ban from entering the country and be ineligible for asylum in the future. As part of a deal with Mexico announced earlier this week, U.S. immigration agents will deport people from Cuba, Haiti, Nicaragua and Venezuela to Mexico if they cross the border illegally.

Story is from TexasTribune.org.