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Title 42 migration law

Updated: May 26, 2023




Title 42: An Overview


Title 42, a provision under the Public Health Service Act, has gained significant attention in recent years due to its use in immigration enforcement. Title 42, also known as the Public Health Service Act, is a United States federal law that grants the government broad authority to take measures to prevent the introduction, transmission, and spread of communicable diseases.


Since March 2020, the U.S. government has utilized Title 42 to expel individuals encountered at the U.S.-Mexico border, citing public health concerns related to the COVID-19 pandemic. Under this provision, migrants, including families and unaccompanied minors, are promptly removed from the country without the opportunity to seek asylum or present their claims for protection.


Origins and Controversy of Title 42


Title 42 was initially enacted in 1944 as part of the Public Health Service Act, which aimed to consolidate and clarify various public health laws. The primary objective was to provide the federal government with the necessary tools to address public health emergencies effectively. The law grants the Secretary of Health and Human Services the authority to implement measures to prevent the introduction and spread of communicable diseases from foreign countries into the United States.


Public Health Justifications and Criticisms


Proponents of the use of Title 42 argue that it is necessary to prevent the introduction and spread of communicable diseases, particularly during a pandemic. They contend that crowded detention facilities and processing centers could contribute to disease transmission, necessitating swift expulsions to safeguard public health.

However, critics of Title 42 expulsions challenge the public health justifications put forth. They argue that the policy does not consider individual circumstances or conduct proper health screenings, potentially exacerbating public health risks. Moreover, public health experts have expressed concerns that expulsions without appropriate testing or access to healthcare facilities may undermine efforts to control the spread of COVID-19.





Legal Challenges and Humanitarian Concerns


Title 42 expulsions have faced legal challenges from various advocacy groups and organizations. Lawsuits have been filed, asserting that the policy violates both domestic and international laws related to asylum, human rights, and non-refoulement—the principle of not returning individuals to situations where they may face persecution or harm.


Additionally, humanitarian organizations have raised concerns about the treatment and well-being of individuals subject to Title 42 expulsions. Reports have emerged of migrants being expelled to dangerous border regions without access to legal counsel, adequate shelter, or essential services. These conditions have drawn attention to the potential human rights implications of the policy.


Racial Disparities and Community Impact


Critics of Title 42 expulsions highlight the disproportionate impact on marginalized communities, particularly people of color. They argue that the policy contributes to racial profiling and discriminatory practices, leading to the unequal treatment of individuals seeking protection or a better life in the United States. These concerns have prompted calls for a more equitable and humane approach to immigration enforcement.



Title 42 and Forceful immigration Policies


Title 42 has been used to facilitate the expulsion and deportation of individuals encountered at the U.S.-Mexico border since March 2020. It began under the Trump’s administration and has continued under Biden’s.


The Centers for Disease Control and Prevention (CDC) issued the policy in March 2020, claiming it was necessary to limit the spread of COVID-19 into the United States. However, public health officials and the CDC themselves have acknowledged that there is no scientific basis for the policy and no evidence that it has effectively protected the public.


Since the beginning of the pandemic, over 1.2 million expulsions have occurred under Title 42, denying individuals the opportunity to have their asylum claims heard. As of September 2021, only a minuscule number of exceptions were made for individuals to seek asylum.


The policy relies on another provision, 42 U.S.C. § 265, which allows for the prohibition of persons who pose a danger of introducing communicable diseases into the United States. However, this authority requires a demonstrable threat of spreading a disease, rather than a mere theoretical risk.


Here is a rundown of how Title 42 has been used to deport people:

  • This policy has been justified by citing public health concerns related to the COVID-19 pandemic.

  • The policy aims to minimize the risk of disease transmission in crowded detention facilities and processing centers.

  • As a result of Title 42 expulsions, individuals are not provided the opportunity to go through the regular immigration processing or asylum procedures.

  • Expulsions disproportionately affect marginalized communities.


Title 42 ends, what now?


The Biden administration has implemented various measures in preparation for the end of Title 42, - May 12, 2023. These changes aim to discourage unauthorized border crossings and provide alternative options for migrants. If Title 42 ends, the government reverts to previous immigration law, falling under Title 8 of the U.S. Code of federal statutes.


The Biden administration has made some changes in response to the upcoming end of Title 42. They have introduced new options to discourage migrants from crossing the border without authorization. One option is the CBP One app, which allows people to request asylum and schedule appointments with immigration agents at a U.S. port of entry. There are 740 appointments available each day along the southern border.


Additionally, processing centers will be established in Colombia and Guatemala. These centers will enable eligible migrants to legally enter the United States, Canada, or Spain without needing to come to the U.S.-Mexico border. The administration has also introduced a family reunification program for individuals from El Salvador, Guatemala, Honduras, and Colombia. People from these countries will undergo background checks, and on a case-by-case basis, immigration agents will determine if they can be reunited with family already in the U.S.


To support immigration agents on the ground, the administration plans to send 1,500 U.S. troops to the border as Title 42 comes to an end.


Concerns under the new policy

  • Consequences under Title 8: Reverting to Title 8 would subject migrants to penalties, including potential imprisonment for up to two years if they re-enter the country illegally after removal or deportation. They would also face a five-year prohibition on re-entry, with felony charges and longer bans for subsequent illegal re-entry.

  • Misuse of Title 42: The use of Title 42 as a means to repeatedly attempt entry incentivizes migrants to try multiple times, increasing the likelihood of successful entry.

  • CBP One app challenges: The administration has required asylum seekers to make appointments through the CBP One app, leading to frustrations and multiple failed attempts. This can push some migrants to try illegal entry and seek asylum.

However, if migrants do not use these options, the administration has announced an increase in deportations at the border. **Those who are deported could face a five-year ban on entering the country and may be ineligible for future asylum.**In a recent agreement with Mexico, the U.S. will deport individuals from Cuba, Haiti, Nicaragua, and Venezuela to Mexico if they cross the border illegally.



Reflecting on Title 42 and Future Policies


Given the ongoing debates and legal challenges surrounding Title 42 expulsions, it is crucial to reevaluate the policy's effectiveness, ethical implications, and adherence to human rights standards. Balancing public health considerations with the rights and well-being of individuals seeking refuge or migrating for other reasons is a complex task. Exploring alternative approaches, such as enhanced testing, screening, and protective measures, could lead to more comprehensive and compassionate solutions.


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