What is Title 42 and what does it do?
Title 42 at the border refers to an order released on March 20th, 2021 by the Centers for Disease Control (CDC) that suspended the entry of certain individuals into the U.S. to prevent the spread of the COVID-19 disease.
According to the order, invocation of Title 42 was necessary to protect the public health by preventing the entry of individuals who pose a risk of spreading COVID-19 into settings such as
land ports of entry, border patrol, stations, facilities operated by the U.S. Customs and Border Protection (CBP), and the U.S. interior.
Who does Title 42 apply to?
Title 42 is applied to individuals traveling from Mexico or Canada who would typically be held in congregate settings such as border patrol facilities. The order states that this is typically individuals who arrive at a port of entry (POE) without valid documents or who unlawfully enter.
Who does Title 42 not apply to?
The Title 42 order does not apply to:
- U.S. Citizens
- Lawful Permanent Residents
- Members of the armed forces/U.S. government workers serving overseas and their spouses and children
- Individuals who arrive at a port of entry (POE) with valid documents
- Individuals in a visa waiver program
What is happening to asylum seekers under Title 42?
Title 42 effectively blocks most asylum seekers from making an asylum claim. A majority of asylum seekers seeking entry are turned away or are apprehended and rapidly expelled by a CBP or Border Patrol officer. According to a DHS memo and reporting from the LA Times, only migrants who make an “affirmative, spontaneous, and reasonably believable claim that they fear being tortured in the country they are being sent back to,” would be referred to the U.S. Citizenship and Immigration Services to seek relief under the Convention Against Torture.
Asylum seekers may be expelled to Mexico or to their country of origin. Upon implementation of Title 42, the Mexican government stated it would only accept expelled migrants from Mexico, Honduras, El Salvador and Guatemala. However, Haitians have reportedly been among those expelled to Mexico.
Asylum seekers expelled into Mexico face a precarious and dangerous situation. In April 2021, Human Rights First reported nearly 500 attacks on asylum seekers in Mexico who were impacted by Title 42. Haitians and others who were expelled to their country of origin stated they expressed their fear of return but were still expelled.
Source: Nationwide Enforcement Encounters: Title 8 Enforcement Actions and Title 42 Expulsions, U.S. Customs and Border Protection, https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics/title-8-and-title-42-statistics
The Tamaulipas government stated they would not accept expelled families with children under the age of six. Consequently, some families apprehended in the Rio Grande Valley were expelled via lateral flights. This means that they were placed on a flight from the Rio Grande Valley and expelled in other Mexican cities where the government would accept families with children under the age of six. However, according to Border Patrol, lateral flights have been discontinued.
Migrant encampments similar to a former encampment in Matamoros have emerged in the Mexican cities of Tijuana and Reynosa. Asylum seekers have reported being kidnapped from the camps by cartel members.
How did title 42 impact unaccompanied children?
From March 2020 to November 2020, the ACLU reported that nearly 13,000 children were expelled under Title 42 by the Trump administration. However, the Migration Policy Institute stated that for all of 2020, 15,867 unaccompanied children were expelled.
In November 2020, a district court blocked the Trump administration from expelling unaccompanied children under Title 42. A federal appeals court stayed the district court’s order which allowed the expulsion of unaccompanied children under Title 42. However, the Biden administration released a notice that it would exclude unaccompanied children from expulsions under Title 42.
Unfortunately, in a June 2021 report released by Amnesty International, the Biden administration is rapidly deporting thousands of unaccompanied Mexican children. Under the Trafficking Victims Protection Reauthorization Act, unaccompanied children arriving from countries other than Mexico or Canada are placed into removal proceedings and transferred to the care of the Office of Refugee Resettlement. But children who are Mexican or Canadian nationals can be repatriated back to their country if they meet certain criteria.
If Title 42 is preventing people from claiming asylum, then how are some people getting into the U.S.?
Asylum seekers may enter the U.S. through one of few ways under Title 42.
Two processes, one through the ACLU and one through a number of NGOs, allow for asylum seekers with certain vulnerabilities to enter the United States. Under the ACLU or Huisha process, about 250 asylum seekers are allowed to enter daily. Similarly, a group of NGOs will be working with the U.S. government to refer asylum seekers with especially vulnerable cases. This process is known as the consortium process. However, it is a temporary process set to last for only three months ending on July 31.
Asylum seekers may also seek entry into the United States through humanitarian parole.
What is the legal justification for Title 42?
Section 265 of Title 42 of the U.S. Code, which includes the Public Health Service Act, gives the U.S. Surgeon General the authority to suspend the entry of certain individuals if it is under the interest of public health.
The expulsion of asylum seekers to countries of origin or to Mexican cities where they may face harm does, however, violate international commitments and U.S. immigration law. Under the U.S. Immigration and Nationality Act, if an individual presents themselves at or between a port of entry and claims a fear of persecution they are allowed to apply for asylum. The 1967 Protocol Relating to the Status of Refugees, an international agreement the U.S. signed and ratified, prohibits states from removing individuals to a place where “their lives or freedom would be in danger on account of their race, religion, nationality, membership of a particular social group or political opinion.”
If public health is the reason for the order, what do the experts say?
Public health experts have condemned the usage of Title 42 to expel asylum seekers arriving at the border stating there is “no public health rationale for denying admission to individuals based on legal status.” According to reporting by the Associated Press and the Wall Street Journal, top CDC officials and doctors objected to the CDC order because it was an “inappropriate use of its public-health powers,” and there was “no valid public health reason to issue it.”
When will Title 42 end?
The Biden administration has not issued a timeline or anticipated date of when it will end Title 42 at the border.