Immigration 101: What is Title 42?

by Olivia Butts and on June 28, 2021

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Last Updated: May 3, 2023

WHAT IS TITLE 42?

Title 42 is part of U.S. health law, specifically Section 262 of U.S. Code Title 42, which prohibits entry into the United States when the Director for Disease Control believes “there is a serious danger to the introduction of [a communicable] disease into the United States.” Essentially, depending on the health situation, the U.S. is able to prohibit entry to anyone except U.S. citizens, lawful permanent residents, and their spouses and children.

WHAT CAUSED THE U.S. TO ENFORCE TITLE 42?

When the COVID-19 pandemic escalated globally, the Department of Health and Human Services decided to implement and enforce this regulation on March 20, 2020. Thousands of asylum seekers that made the treacherous journey to the border, were turned away from accessing the legal asylum system.

While Title 42 might seem like an innocent regulation with no ill-intention towards immigrants themselves, it was quickly questioned by immigrant advocates. Even some doctors from the Centers for Disease Control and Prevention (CDC) argued that the decision to halt the asylum process was not based on public wellness and safety. There was no real reason to turn away people at the border.

The Trump administration wanted the CDC to use its powers and the pandemic to close the border and stop the flow of immigrants. When the top CDC doctor who oversees this regulation refused to comply, former Vice President Pence intervened. Pence used his authority over the COVID-19 response to put Title 42 into action. “There was a lot of pressure on [the Department of Homeland Security] and CDC to push this forward,” a former Pence aide told the Associated Press in October 2020.

Federal courts have rejected the legal basis for Title 42, but the regulation was extended indefinitely. Public health experts have also noted that the regulation falls flat on its promise to maintain public health when there were international borders that were open to other travelers at the height of the COVID pandemic.

WHAT HAS TITLE 42 LOOKED LIKE FOR MIGRANTS?

Individuals seeking asylum in the U.S. have been turned away and forced to wait in Mexico. According to U.S. Customs and Border Protection (CBP) data, an estimated 2.4 million people have been expelled from entering the U.S. under Title 42 since March 2020. This has put families and children in a vulnerable situation. Many know about the horrors of the Remain in Mexico Policy, but Title 42 acts in the same manner, stripping away asylum seekers’ right to due process.

Human Rights Watch has documented some of the human rights violations that have taken place due to this policy, and the Marshall Project released data on the immoral nature of Title 42. Strict border policies focused on deterrence, which was common for the Trump administration, have done nothing more but make the trek into the U.S. more dangerous and deadly because it pushed migrants into remote regions of the border. The Marshall Project reports that the migrant death rate has almost doubled under Title 42.

THE ENDING OF TITLE 42 UNDER THE BIDEN ADMINISTRATION

Although the Biden administration made significant changes to address the COVID-19 pandemic compared to his predecessor, the end of Title 42 has been long overdue. CBP reported that, during Biden’s first 2 years as president, there have been over 2 million recorded expulsions, which is almost 85% of all expulsions since the start of the pandemic when Title 42 was implemented. Secretary of Homeland Security Alejandro Mayorkas has publicly stated that Title 42 is “driven by the public health imperative. It is not a tool of immigration. It is a tool of public health to protect not only the American people but the migrants themselves.”

WHY SHOULD TITLE 42 END?

Jenn Budd, a former senior Border Patrol agent who now advocates on behalf of migrants, says that you cannot deter people running for their lives. She stated that “if they can no longer drive through, they will jump over, tunnel in, or backpack across. It’s a matter of life and death.” As businesses and workplaces have begun to function under a new normal, and the guise that COVID-19 is now controlled, it is time to finally put an end to Title 42 and the deaths at the border. Travel never stopped during the pandemic, but the Biden administration continues to say that Title 42 remained in place in service of public health.

It is time that the Biden administration start addressing immigration head-on, and stop relying on Trump’s old policies to dictate their current legacy and responsibility to the American people. Immigration advocates have demanded an end to Title 42, fair due process for asylum seekers, and actual immigration policy that will address the root causes of migration and welcome immigrants with the dignity and respect they rightfully deserve.

WHAT WILL HAPPEN AFTER TITLE 42 ENDS?

Title 42 is set to expire May 11, 2023. At the end of April 2023, the Biden administration announced their plans to handle the high influx of immigrants expected to cross the border after the lifting of Title 42. These plans include expanding legal pathways, opening new refugee regional processing centers in countries like Guatemala and Colombia, and expanding family reunification. The plans don’t stop there, however — they will also be ramping up deportations and militarizing the Darién Gap in an attempt to deter migrants.

The most important thing to understand is that the U.S. can handle this. Cities like Philadelphia —where Texas governor Greg Abbott bused thousands of migrants without any prior announcement in late 2022 — are ready to welcome immigrants. Amy Eusebio, director of the Office of Immigrant Affairs in Philadelphia, stated, “As a city we’re definitely in preparation. We feel ready.” San Diego county also has preparations underway, with Jewish Family Services “operating in non-congregate hotels and leveraging our ability to use an off-site location to operate a day center to open capacity in our hotels.” San Diego City Councilmember Raul Campillo states “…we as a city, county and region are going to be devoting resources to help these individuals find housing, resources to become stable.” Many cities, like San Diego, along the border are preparing for the influx, and the U.S. should collectively be ready to welcome immigrants with dignity and grace.

WHAT HAVE ADVOCATES SAID ABOUT THE END OF TITLE 42?

June 4, 2021: Karen Musalo, Professor and Founding Director, Center for Gender and Refugee Studies, UC Hastings: “The formal termination of the Migrant Protection Protocols (MPP) is a positive step forward, but it does not go far enough. We need to ensure every asylum seeker adversely impacted by MPP has a fair opportunity to pursue their claims for protection. Of even greater concern is the Biden administration’s refusal to end Title 42, which has blocked virtually all asylum seekers from seeking safety in the U.S. Until Title 42 is rescinded, the U.S. will continue to be in blatant violation of its domestic and international legal obligations. Finally, as the administration ramps up processing of asylum claims, we urge it to reject measures that rush cases, which deny due process and result in flawed decision-making. We can and should do better as we rebuild our system.”

May 27, 2021: Eleanor Acer, Sr. Director, Refugee Protection, Human Rights First, said, “While we are thrilled to see these families finally reunited, the Biden administration is continuing to use another Trump administration policy to turn away other families to dangers, leading to new family separations. It’s already way past time for the Biden administration to end its use of the Trump administration’s Title 42 policy and restore compliance with the refugee laws enacted by Congress.”

April 27, 2023: Eleanor Acer, Sr. Director, Refugee Protection, Human Rights First, said, “The Biden administration is rightly expanding refugee resettlement from the Americas, an overdue step towards addressing a long-standing gap for people in need of international protection. This initiative should swiftly bring refugees to safety and not be used to reduce the resettlement of refugees from other regions. The Biden administration should focus on measures like increasing refugee resettlement and regular pathways and abandon its plan to impose an asylum ban that would be a legal, moral, and political mistake.”

May 14, 2021: American Immigration Council: “Title 42 has not only had a severely negative effect on asylum seekers, it has also led to an increase in people crossing the border more than once, an effect acknowledged by DHS officials. Almost immediately after lockdowns lifted across Mexico and Central America, the number of single adults coming to the border seeking to enter the United States began rising rapidly, from a low of 14,754 in April 2020 to 62,041 in December 2020.”

April 27, 2023: Aaron Reichlin-Melnick, Policy Director at the American Immigration Council: “The American Immigration Council applauds today’s announcement by the Biden administration. Responding to a displacement crisis throughout the Western Hemisphere requires thinking beyond the U.S. border. Regional processing centers in Central and South America that can provide safe havens for migrants will reduce the pressure on the U.S. southern border, provide safer alternatives for migrants, and limit the power of smugglers and transnational criminal organizations. However, while refugee processing abroad is a crucial part of addressing the humanitarian needs caused by displacement, it cannot be the only measure. As the Biden administration prepares for the end of Title 42, it must ensure that asylum remains a valid option for those who are unable to access these new measures and rethink its plan to rapidly force migrants through critical asylum screenings while detained in Border Patrol custody without meaningful access to legal counsel.”