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Immigration 101: What is Title 42?

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Update: According to Axios, the White House is considering ending Title 42 by the end of July 31. 

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 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 of CDC’s own doctors 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. 

Apparently, 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. 

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 does Title 42 look like for migrants? 

Individuals seeking asylum in the U.S. were turned away and forced to wait in Mexico. As of this February, the American Immigration Council reported that nearly half a million individuals were expelled from entering the U.S. under Title 42. This puts families and children in a vulnerable situation. Many know about the horrors of 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 taking 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 migrations into remote regions of the border. The Marshall Project reports that the migrant death rate almost doubled under Title 42. 

Did Title 42 end with the change in administration?

While the Biden administration has made significant changes to address the COVID-19 pandemic compared to his predecessor, they have yet to end Title 42 despite being fully aware of the dangers of this regulation. CBP reported that, after Biden took office, there were 290,000 recorded expulsions between February and April of 2021, which is almost 40% of all expulsions since the start of the pandemic when Title 42 was implemented. Secretary Alejandro Mayorkas, of the Department of Homeland Security, 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 advocates on behalf of migrants now, 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.” Right now, as businesses and workplaces are beginning to function under a new normal, and the guise that COVID-19 is now controlled, the Biden administration cannot keep using the same excuse for why Title 42 should end when people are dying at the southern border. Travel never stopped during the pandemic, but the administration continues to say that Title 42 remains 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 now demand an end to Title 42, due process for asylum seekers, and actual immigration policy that will address the root causes of migration and welcome immigrants with the dignity they rightfully deserve.

What have advocates said about 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.” 

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.”

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END TITLE 42 NOW

Title 42 Informational  

Read more:

A Guide to Title 42 Expulsions at the Border

Q&A: US Title 42 Policy to Expel Migrants at the Border 

The Obscure Public Health Law Trump Wielded Against Migrants Is Still Ruining Lives