Since March 2020, the U.S. has used its authority under the Title 42 public health law to rapidly expel migrants and, in some cases, suspend the right to seek asylum under U.S. law and international treaty.
The Centers for Disease Control and Prevention under the Trump administration invoked Title 42 shortly after the coronavirus outbreak. Its purpose was to prohibit border control agencies from holding migrants in "congregant settings," like holding stations, where COVID-19 could spread rapidly. In effect, though, Title 42 gave the government the power to rapidly expel any migrant, without giving them an opportunity to make a case for staying in the country legally, including to seek asylum.
There have been multiple legal challenges to the policy.
On Dec. 19, the Supreme Court blocked a plan by the Biden administration to lift Title 42 restrictions on Dec. 21, as ordered by a lower court. On Dec. 27, the Supreme Court agreed to hear arguments in February on whether 19 Republican-led states, including Texas, can challenge a lower-court ruling that ordered the Biden administration to lift Title 42.
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But the Supreme Court canceled the case in February after the Biden administration said it would end the nation's COVID-19 emergency order, effectively ending the Title 42 expulsions authority and rendering the arguments moot.
The CDC officially rescinded the policy a year ago, in April 2022, saying it was "no longer necessary" after "considering current public health conditions and an increased availability of tools to fight COVID-19."
What is Title 42?
The name refers to Title 42 of the U.S. Government Code established July 1, 1944. The law grants federal authorities the power to deny entry of people and products into the country to limit the spread of a communicable disease.
The Trump administration invoked the authority in March 2020 at the outset of the pandemic, and the Biden administration has continued to use Title 42 expulsions as a method of border control.
"Title 42 is not an immigration authority, and the order has been used to supersede federal law at the border ‒ which is under Title 8 of the U.S. Code ‒ and abrogate legal rights that have been guaranteed to arriving migrants for decades," according to an explainer published by the nonpartisan National Immigration Forum.
When will Title 42 end?
The use of Title 42 expulsions at the Southwest border is expected to end when the nation's COVID-19 emergency order expires May 11.
On April 1, 2022, the Biden administration announced its plans to rescind the Title 42 order. The policy was to officially end on May 23 but was caught in legal wrangling for months.
Homeland Security Alejandro Mayorkas said in a statement then that the department would process migrants according to "standard procedure," placing them in removal proceedings. It's still unclear exactly how asylum-seekers and other migrants will be processed once Title 42 expulsions end.
Title 42 has been a political hot potato. President Joe Biden has faced criticism by Republicans for wanting to end the use of quick expulsions at the border and by Democrats for not ending the expulsions soon enough.
In the case canceled by the Supreme Court in February, Arizona, Louisiana and Missouri led a coalition of states, including Texas, in challenging the Biden administration's effort to lift Title 42, arguing that their states' health care, law enforcement and education systems would be overly burdened by an influx of undocumented immigrants if the public health restriction is lifted.
How is the Title 42 border policy used?
The Border Patrol has applied Title 42 differently in different border regions, depending on the resources available and the demographics of migrant groups. Enforcement of the order also varied under the Trump and Biden administrations.
Under the policy, migrants who cross between ports of entry can be picked up by Border Patrol, processed and expelled ‒ sometimes within hours. Title 42 has been applied both to those migrants who seek to evade border agents as well as those who turn themselves in with Border Patrol to seek asylum.
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The Border Patrol's ability to expel unauthorized migrants under Title 42 has been limited by which migrants Mexico is willing to accept, and how many, at different points along the border. The rate of Title 42 expulsions also can be influenced by the demographic makeup of who is crossing where.
Migrants from Mexico, Central American nations, Cuba and Venezuela can be expelled to Mexico under an agreement between the U.S. and Mexico. Others, including Haitians, have been expelled to their countries of origin unless they have legal documents to reside in Mexico, in which case they can be sent back to Mexico.
Border agencies expelled unaccompanied migrant children for a time under the order during the Trump administration, but the Biden administration stopped the practice.
In El Paso, the expulsions have taken the form of the Border Patrol walking migrants to the top of an international bridge and instructing them to walk south into Juárez. In some cases, the Border Patrol's El Paso Sector transfers migrants for expulsion at border crossings in other parts of Texas and in Arizona.
How many migrants have been expelled?
Since the start of the Title 42 policy, the Border Patrol has expelled migrants nearly 2.8 million times, according to U.S. Customs and Border Protection.
Title 42 allows for quick returns without repercussion, and that has encouraged some migrants to try again and again. Multiple crossings by migrants surged after the order went into effect.
In El Paso, the Border Patrol has leaned heavily on Title 42, where 63% of Border Patrol encounters have resulted in a Title 42 expulsion over the life of the policy, according to CBP. Between January and March, between two-thirds and 73% of encounters each month have resulted in expulsion.
Mexico permits Title 42 expulsions at some, but not all, of its border crossings.
Across the Southwest border, the use of Title 42 expulsions is much lower. From January to March, between one-third and 36% of encounters resulted in expulsion, in part, because Mexico doesn't accept expelled migrants in some locations.
John Moritz of the USA TODAY Network-Texas and John Fritze of USA TODAY contributed to this report. Lauren Villagran can be reached at email@example.com.
This article originally appeared on El Paso Times: What is Title 42 and why is it ending? What to know about asylum seekers