Editor's note: After authorities discovered the bodies of 50 migrants in a tractor-trailer in San Antonio on June 27, migrant advocates said restrictive border policies like Title 42 have made hiring human smugglers a more attractive option for migrants seeking to enter the United States — and made it more difficult for the migrants who survived the sweltering trailer to obtain special visas given to crime victims or cooperating witnesses.
For the past two years, the federal government has turned away migrants at the U.S.-Mexico border, including those who are seeking asylum, using a public emergency health order known as Title 42. It was launched by the Trump administration at the start of the pandemic and continued under the Biden administration.
The U.S. Centers for Disease Control and Prevention recently announced that it plans to end Title 42 on May 23 because COVID-19 cases have decreased and vaccines are widely available. But that date is now in question because of Republican-led lawsuits aimed at keeping the policy in place.
What started as an effort to slow the spread of COVID-19 across the border has turned into a fierce debate over whether Title 42 should be continued as an immigration tool to block migrants from claiming asylum.
Here’s what you need to know about the law.
What is Title 42?
Title 42 is part of the Public Health Service Act of 1944 aimed at preventing the spread of communicable diseases in the country. According to the law, whenever the U.S. surgeon general determines there is a communicable disease in another country, health officials have the authority, with the approval of the president, to prohibit “the introduction of persons and property from such countries or places” for as long as health officials determine the action is necessary. That authority was transferred from the U.S. surgeon general to the director of the CDC in 1966.
Congress approved a similar law in 1893 during a cholera epidemic that gave the president authority to exclude people from certain countries during a public health emergency. It was used for the first time in 1929 to bar people coming from China and the Philippines during a meningitis outbreak.
Why was it activated?
The Trump administration invoked Title 42 for the first time since its creation in March 2020 as a way to help stop the spread of COVID-19 in immigrant detention centers, where many migrants are placed after they arrive at the U.S.-Mexico border.
According to The New York Times, Stephen Miller, a senior adviser to former President Donald Trump, had pushed the idea to invoke Title 42 at the U.S.-Mexico border as early as 2018, long before COVID-19 emerged.
As COVID-19 cases rose in the U.S., then-CDC Director Robert Redfield enacted Title 42 to seal the land borders with Canada and Mexico for migrants seeking asylum on March 20, 2020. The Associated Press reported that then-Vice President Mike Pence ordered Redfield to enact Title 42 over the objections of CDC scientists who said there was no evidence that it would slow the virus’ spread in the U.S.
Dr. Anthony Fauci, the nation’s top infectious disease expert, has said that immigrants are not driving up the number of COVID-19 cases.
How many migrants have been removed under Title 42?
Immigration officials have used the health order nearly 1.8 million times to expel migrants, many of whom have been removed multiple times after making repeated attempts to enter the U.S.
Under Title 42, the recidivism rate — the percentage of people apprehended more than once by a Border Patrol — has increased to 27%. Previously the rate was 7%.
During the Trump administration, immigration agents expelled all types of migrants; the Biden administration has instructed agents to exempt unaccompanied children from Title 42. When agents apprehend unaccompanied children, they are placed in a federal shelter or a state-run facility until they are reunited with a family member in the U.S. or until they find a sponsor.
While most migrants are sent across the border to Mexico under Title 42, others are returned to their home countries. Immigration officials also have the discretion to allow certain migrants to enter the country if there are “significant law enforcement, officer and public safety, humanitarian, and public health interests.”
What happens if Title 42 is ended?
Homeland Security predicts up to 18,000 daily encounters with migrants — more than double the current average — when Title 42 ends. Anticipating such an increase, the agency has released a plan that includes vaccinating migrants in U.S. Customs and Border Protection custody, adding 600 CBP agents across the southwest border, and increasing the capacity of federal holding centers from 12,000 to 18,000.
Rather than sending migrants directly to Mexico, immigration officials will process migrants arriving and determine if they have a credible asylum case or whether they qualify for any other immigration benefits that allow them to enter the country. If not, immigration agents will hold the migrants and deport them to their home countries.
Some asylum-seekers will be placed in the Migrant Protection Protocols, another Trump-era policy that forces migrants to wait in Mexico as their immigration cases make their way through U.S. courts. The Biden administration has sought to scrap the program, known as “remain in Mexico,” only to have a federal judge order it to be reinstated following a lawsuit by Texas Attorney General Ken Paxton.
The U.S. Supreme Court recently heard arguments on whether the White House has the right to end it and is expected to issue a ruling this year.
What’s the status of the legal fights over Title 42?
The public health order has been the subject of lawsuits in federal courts across the country.
On March 4, U.S. District Judge Mark Pittman in Fort Worth ruled in favor of Texas and ordered the Biden administration to stop exempting unaccompanied children from Title 42 expulsions. That same day, a federal appellate court in Washington, D.C., reaffirmed a lower court’s ruling in a separate case that it’s illegal to expel asylum-seeking migrant families to countries where they could be persecuted or tortured.
After the CDC announced that it was letting Title 42 expire, Arizona and 21 other states filed a federal lawsuit on April 3 in the Western District of Louisiana, asking a judge to stop the government from lifting Title 42. Texas filed a separate lawsuit on April 22 seeking the same thing.
Both lawsuits argue the Biden administration violated administrative procedural laws and that if Title 42 is lifted as planned, it could lead to chaos at the border.
On Wednesday, District Judge Robert R. Summerhays, an appointee of former President Donald Trump, temporarily blocked the Biden administration from winding down the use of Title 42 and indicated that he plans to block efforts to end Title 42 altogether.
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