DemDaily: What is Title 42?

May 9, 2023

On May 11, the Biden administration will end the implementation of Title 42, a Trump-era pandemic restriction that has allowed the United States to expel migrants over 2.8 million times from the southern border over the last three years.

Despite an April 2022 announcement by the Centers for Disease Control (CDC) that there was no public health obligation to continue expelling migrants, administration efforts to rescind Title 42 have been unsuccessful—blocked by a series of lawsuits from officials in Republican-led states.

With the official end of the national COVID-19 public health emergency this Thursday, however, the legal basis for Title 42's continuation expires.

Hailed by immigration rights advocates and progressives, the end of the policy has set off panic among conservative lawmakers and officials who anticipate a massive influx of migrants that would add to already historic border crossings.

What is Title 42?
Title 42 of the US Code is a Public Health Services Law that empowers the government to take emergency action to stop the “introduction of communicable diseases.” First enacted in 1944, it was rarely used until the Trump Administration weaponized it as an anti-immigration tool.

Officially implemented under the CDC, it was activated in March of 2020 to designate hundreds of thousands of migrants for “expulsion,” arguing that their entry into the US may increase the spread of COVID-19.

The order authorizes border enforcement agencies to send migrants back to their country of origin with no documentation of any due process or the chance to seek asylum. This means there are no legal consequences or record under normal immigration law, so many immigrants simply try again, fueling a significant increase in repeat border crossings.

High levels of violence in Mexico and Central America are driving more people to seek asylum. Other top countries of origin for undocumented immigrants are Cuba, Haiti, Nicaragua, Venezuela, Honduras, El Salvador, and Guatemala.

How Asylum Works
Immigration policy in the United States is governed by the Immigration and Nationality Act (INA) under Title 8 of US Code. The INA, which has been amended numerous times since it was enacted in 1952, grants permanent immigrant visas across various categories, including for those attempting to enter the country unlawfully.

Most undocumented immigrants attempt to cross at the US-Mexico southern border, with many seeking asylum as refugees from violence or persecution in their home countries.

Federal law allows people to seek asylum in the US on one of five grounds: race, religion, nationality, political opinion or membership in a particular social class (including sexuality or caste).

If a migrant passes a "credible fear" screening, their case is referred to immigration court. If they fail or are denied in court, the applicant will be expelled. If a migrant attempts to come back without documents, the penalties can be higher, including criminal prosecution and denial of future visa applications.

Current Status
Opponents of immigration reform, fueled by right-wing media, say the end of Title 42 will create an unprecedented surge at the border, bringing COVID-carrying migrants and a spike in crime and smuggling.

Advocates say the restriction is creating a humanitarian crisis, inhibiting refugees from requesting safe asylum, a legal right they normally have if they reach US soil. Human Rights First, a legal advocacy group, has identified more than 13,000 incidents of kidnapping, torture, rape, or other violent attacks on people blocked or expelled to Mexico under Title 42 between 2021 to 2022.

"As President Biden has done since his first day in office, we again call on Congress to legislate to provide sufficient resources to manage increased encounters at the border and to fix the immigration system everyone agrees is terribly broken. Absent Congressional action, we will do what we can using the authorities and resources available to us to manage the border in a safe, orderly, and humane manner.” - Secretary of Homeland Security Alejandro Mayorkas, January 5, 2023

In January, anticipating the phasing out of Title 42, the White House unveiled the first in a series of measures to reduce and manage immigration at the border and return to the process under Title 8.

In an April 28 press conference, Secretary Mayorkas described the "surging resources" to the border, including modernizing processes, unprecedented law enforcement focus on smuggling organizations, fast-tracking the “expedited removal” deportation process, and distributing over $420 million to local communities and their non-profit organizations.

Also at the request of DHS, the Department of Defense is sending an additional 1,500 military personnel, for 90 days, to supplement border control efforts.

The last major immigration reform enacted in the United States was the 1986 Immigration Reform and Control Act, which made it illegal to hire or recruit illegal immigrants, while also legalizing some 2.7 million undocumented residents who entered the US before 1982.

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Kimberly Scott

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Sources: CBS, CNN, Homeland Security, US Citizen and Immigration Services, US Custom and Border Protection agency, NPR

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