For nearly 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.
On Nov. 15, Judge Emmet Sullivan of the U.S. District Court in Washington, D.C., blocked the federal government from continuing to use Title 42 to immediately expel migrants at the southern border after they have entered the United States.
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 Dec. 21.
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 2.4 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 Texas Tribune analysis of fiscal year 2022 data shows the current rate is 25%.
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, more recently, Venezuela.
In the past year, Haiti, Guatemala, Honduras, El Salvador, Colombia, Peru and Brazil have agreed to accept their citizens who are sent back by plane.
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.
On March 4, 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 in the Western District of Louisiana, asking a judge to stop the government from lifting Title 42. Texas filed a separate lawsuit on April 22 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.
On Wednesday, 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 and indicated that he plans to block efforts to end Title 42 altogether.
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.
Earlier this 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.
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.
Axios and The New York Times recently reported that the Biden administration has been considering adopting a different approach once Title 42 is lifted. According to the news reports, immigration officials would deny migrants the ability to claim asylum unless they were previously denied asylum by other countries they passed through on their way to the U.S. — an approach similar to a Trump policy that refused asylum claims by migrants who didn’t first seek asylum in other countries.