What is Title 42? KSAT Explains

May 11, 2023, is the day Title 42 is set to end and communities along the U.S.-Mexico border are expecting an increase in migrant crossings

If coverage of the end of the immigration policy known as Title 42 feels like dejavu, there is reason for that.

One year ago as the policy was set to be lifted, a judge ruled at that Title 42 would remain in place.

Here’s where it came from

In March 2020, at the height of the coronavirus pandemic, the Trump Administration enacted Title 42.

Since then, it has allowed U.S. Customs and Border Protection to turn away migrants at the border in an effort to slow the spread of COVID-19.

Few people had heard of Title 42 prior to the pandemic, but it has been on the books in the U.S. for nearly 80 years.

It’s part of the Public Health Service Act signed by President Franklin D. Roosevelt in 1944.

The intent of Title 42 was to suspend entries and imports from designated places to prevent the spread of communicable diseases.

Tuberculosis was a major public health concern then.

The same Public Health Service Act also created the National Cancer Institute.

“It had rarely been used and had never, ever been used in the immigration context,” said Erica Schommer, clinical professor of law at St. Mary’s University.

That is until 2020 when Title 42 was invoked to essentially suspend immigration at U.S. land borders.

It meant that Customs and Border Protection did not have to process people who presented themselves at the border, wanting to seek asylum.

Expulsion vs. Deportation

Migrants denied entry to the country under Title 42 are fingerprinted and expelled from the U.S., which is different than deportation.

When someone is deported, they are barred from re-entering the country for a certain number of years.

Expulsion doesn’t carry that penalty.

What happens after someone is expelled depends on where a person is from.

“If they’re from Mexico or Central America, they’re typically just sent right back to Mexico within a matter of hours,” Schommer said. “If they’re from another country where, you know, Mexican immigration is not going to allow them to simply be put back, then they’re temporarily held in CBP custody. There were people who were being held in hotels until essentially a plane is filled up and then people are flown out.”

That’s what we saw play out in Del Rio in September 2021 when roughly 16,000 migrants from Haiti crossed into the U.S. hoping to seek asylum.

They were fleeing a country in upheaval after the assassination of the Haitian president and a devastating earthquake.

It became a humanitarian crisis with thousands of people living in makeshift shelters under the Del Rio International Bridge with few supplies and resources.

Read: How did a little-known provision in federal law upend the immigration system? KSAT Explains

“Some of (the migrants) are detained. Some of them are released,” Schommer said. “And so that is also a concern because it appears to be very arbitrary who is rejected and who is allowed to make a claim.”

Seeking Asylum in the U.S.

To make an asylum claim, you must be physically present in the U.S. The process cannot be started online or at U.S. Embassy.

Once a migrant claims asylum, the next step is what’s called a “credible fear interview.” That’s when an asylum officer decides whether a person merits going through the full asylum process.

Fear is what Jeamy Solis is fleeing.

KSAT met Jeamy and her three-year-old daughter at the Catholic Charities Respite Center in McAllen in May 2022.

They came to the U.S. from Nicaragua to escape political oppression and violence.

“It’s terrible. We are oppressed. We cannot speak up because they will report you to police. You can’t express your views. You live in fear,” Jeamy told KSAT.

She was one of the lucky ones who wasn’t turned away.

So is Yasmani Gonzalez Vasquez from Cuba, who we also met at the respite center in May 2022.

What he feared, he said, was hunger in his home country.

“We are seeking asylum in order to have a better future,” he said. “We wanted to come to this country to have a better future for the baby and for us, too. That he may have everything that a Cuban cannot.”

Advocates for migrants want to see Title 42 ended in order to restore the opportunity for everyone to seek asylum who so chooses.

“That is all that we’ve been advocating for, right? Allow people to apply for asylum. It doesn’t mean they get to stay. It just means give them a chance to apply,” said Efren Olivares with the Southern Poverty Law Center. “And if they qualify, they get to stay. If they don’t qualify, they may be deported. And Title 42 gets rid of all of that.”

‘Adding to an existing burden’

There are those who enter the U.S. illegally who don’t seek asylum, whether frustrated with too slow a process at the southern border or simply hoping to evade immigration authorities.

Richard Guerra owns La Anacua Ranch in Starr County, outside of Roma. He’s seen firsthand what migrants often go through trying to make the dangerous journey into the U.S.

KSAT visited with him in May 2022.

Guerra said he once found five women who had been wandering his ranch for five days without food or water.

“They have been abandoned. Whoever brought them across abandoned them and they told them, ‘Well, it’s a short -- just a short distance, and you’re going to be in Houston,’” Guerra recalled. “But of course, that’s not true.”

“It’s so hard to see people enduring things like that, you know?” he said.

His fences have been damaged by migrants who cross his land. Even his cattle have been affected. But a concern that spreads beyond his ranch, he says, is drug smuggling.

“There’s a lot of narcotics coming across. The National Guard, they’re allowed to supplement the Border Patrol. And even so, they can’t control it. So it’s out of hand,” Guerra said. “By removing Title 42, you’re going to add to an existing burden.”

Did Title 42 create a surge of migrants?

Yet, some argue the anticipated wave of migrants is a problem U.S. policy created.

“Because of Title 42, that’s the reason why we have the levels and activities that we see right now,” said Laura Pena, director of the Beyond Borders program, in May 2022.

“The numbers are arguably higher right now precisely because we’ve been pushing people back for more than two years,” Schommer said at the time.

Despite calls again and again for reform, substantial change continues to be a struggle.

For now, we’ll see what a change in Title 42 brings to Texas, if it happens this time.

Find more stories like this on the KSAT Explains page.

About the Authors

Myra Arthur is passionate about San Antonio and sharing its stories. She graduated high school in the Alamo City and always wanted to anchor and report in her hometown. Myra anchors KSAT News at 6:00 p.m. and hosts and reports for the streaming show, KSAT Explains. She joined KSAT in 2012 after anchoring and reporting in Waco and Corpus Christi.

Valerie Gomez is lead video editor and graphic artist for KSAT Explains. She began her career in 2014 and has been with KSAT since 2017. She helped create KSAT’s first digital-only newscast in 2018, and her work on KSAT Explains and various specials have earned her a Gracie Award from the Alliance for Women in Media and multiple Emmy nominations.

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