With pandemic restrictions coming to an end on May 11, there is a concern that there it can create an immigration flow and chaos at the border.
Title 42 allowed the U.S. Border Patrol and U.S. Customs and Border Protection to prohibit the entry of persons who potentially pose a health risk by being subject to previously-announced travel restrictions or because by unlawfully entering the country to bypass health-screening measures. Its use was implemented under the Trump administration and has continued under the Biden administration to prohibit asylum seekers from lawfully petitioning for asylum in the United States.
In order the mitigate the effects of the end of this policy, the Biden Administration plans to strengthen the number of troops stationed at the U.S.-Mexico border. Senators Thom Tillis and Kyrsten Sinema in May 2023 introduced a bi-partisan bill to extend Title 42.
In March 2020, the Center for Disease Control under the Trump administration issued a public health order allowing for the rapid expulsion of unauthorized border crossers and asylum seekers citing COVID-19 concerns. As it is considered an “expulsion” rather than a “deportation”, the migrants are not afforded the right to make a case to stay in the U.S. before an immigration judge. Most migrants subject to Title 42 measures are returned to Mexico within hours. Trump advisor Stephen Miller had a role in shaping the policy and has since defended it in interviews.
In November 2020, a federal court ordered a halt to the practice regarding unaccompanied minor children; on January 29, 2021, the stay was lifted by the DC Circuit Court of Appeals allowing minors to be expelled pending its review of the case. In February 2021, Mexico stopped accepting families with children under the program.
Physicians for Human Rights notes that the policy has been applied unfairly against migrants and asylees and that its stated purpose of containing the spread of COVID-19 is dubious as the U.S. continues to allow millions of people to cross the US–Mexico border weekly. In early February 2021, the Mexican government announced that it would stop accepting non-Mexican family units with minor children returned to Mexico under Title 42.
In June 2021, it was reported that the Biden Administration may be considering rescinding Title 42. In September 2021, NPR reported that the Biden administration has defended Title 42 expulsion in court under the pretext of slowing the spread of COVID-19.
In December 2021, Anne Schuchat, the second-highest official at the Centers for Disease Control, testified that the expulsions of migrants under Title 42 lacked a sufficient public health rationale.
In March 2022, the DC Circuit Court of Appeals ruled that the Biden admin can continue to swiftly remove migrant families under Title 42, but “only to places where they will not be persecuted or tortured.”
On April 1, 2022, the CDC officially announced it would rescind Title 42. However, to allow for the implementation of a vaccine program to get migrants vaccinated at the border, the policy was not scheduled to officially end until May 23, 2022. On May 20, a federal judge for the United States District Court for the Western District of Louisiana, Robert R. Summerhays, issued a ruling blocking the CDC from ending Title 42 expulsion.
In April 2022, the Biden Administration introduced a streamlined program for allowing an unlimited number of Ukrainian nationals who pass various checks and are sponsored by various organizations under the “Uniting for Ukraine” program to be excepted from Title 42 and get humanitarian parole and work permits. In October 2022, it introduced a similar program for Venezuelan nationals, who must arrive by air. The number of Venezuelans was capped at 24,000, and those arriving by crossing into Mexico or Panama illegally would start to be expelled under Title 42.
In October 2022, the Biden administration invoked Title 42 to expel Venezuelan migrants to Mexico. Amnesty International and Human Rights Watch criticized the decision.
On November 15, 2022, Senior Judge of the United States District Court for the District of Columbia, Emmet G. Sullivan, ruled that expulsions under Title 42 were a violation of the Administrative Procedure Act, noting that the Title was an “arbitrary and capricious” violation of the Act.
The ruling required the United States government to process all asylum seekers under immigrant law as previous to Title 42’s implementation, and Sullivan specifically called out the CDC for intentionally ignoring the negative effects of implementing Title 42 and not considering alternative approaches to expulsion such as vaccination, outdoor processing, and allowing asylum seekers to quarantine with U.S. relatives. Sullivan opined that the policy had no rational basis as COVID-19 was already widespread throughout the U.S. when the program was initiated.
The ruling was celebrated by the ACLU, a plaintiff in the case.