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Title 42: Public Health and the Right to Seek Asylum

nder the Refugee Convention, immigrants have the right to seek asylum at the border. However, on March 20, 2020, former President Trump suspended this right by invoking 42 U.S.C. § 265. Colloquially known as Title 42, this provision permits the CDC Director to “prohibit . . . the introduction” of individuals into the United States when the Director believes that “there is serious danger of the introduction of [a communicable] disease into the United States.” Facing mounting pressure from the Trump administration, CDC Director Robert R. Redfield relied on this regulation to issue an order suspending the introduction of certain individuals who came from “Coronavirus Impacted Areas.” On paper, the order specifically targeted individuals who entered the United States from Canada or Mexico and would be introduced into a congregate setting, such as a detention facility. In practice, the Border Patrol began immediately expelling individuals who arrived at the U.S.-Mexico border, without giving those individuals the opportunity to seek asylum. Instead, Border Patrol agents conducted their own rapid analyses to determine whether or not each individual presented the circumstances required for asylum.

Despite mounting criticism and looming litigation, the Biden administration has kept the policy in place, with CDC Director Redfield declaring that the order will extend “until [he] determine[s] that the danger of further introduction of COVID-19 into the United States has ceased to be a serious danger to the public health, and continuation of the Order is no longer necessary to protect the public health.” However, immigration advocates argue that the current COVID-19 situation, increased vaccination, and decreased hospitalization rates imply that the Order is no longer necessary to prevent a public health emergency. The Biden administration has been considering its options while it works to tackle immigration reform in the U.S. In November 2020, a federal judge held that Title 42 was in violation of the Trafficking Victims Protection Act (TVPA), which requires the government to protect children who arrive at the border without a parent or legal guardian. The order was upheld in January 2021 and further amended by the Biden administration to exempt unaccompanied migrant children from Title 42 provisions. Additionally, the administration created an exemption for anyone that the Department of Homeland Security determines should be allowed into the United States on “consideration of significant law enforcement, officer and public safety, humanitarian, and public health interests.” However, the administration has faced increasing pressure from the ACLU to put an end to the practice. Recently, the ACLU agreed to pause its impending litigation, giving the Biden administration the opportunity to end the suspension on its own.

In reality, the United States has a history of using public health concerns as a reason to turn away migrants. When individuals arrived at Ellis Island, some were excluded from entering if they presented symptoms of “communicable diseases with public health significance.” Additionally, during the 1980s, the U.S. used the HIV/AIDS epidemic to turn away African and Haitian asylum seekers. However, Title 42’s impact has been more concerning, even prompting a statement from the UN High Commissioner for Refugees. The impact of Title 42 rests mostly on single migrant adults, with increasingly high rates of arrest at the border. Over the past four months, migrant adults have been expelled more than 350,000 times under the Order. While individuals who are expelled do not receive a deportation order, CBP collects each individual’s biometrics and records their contact with the agency. Because of this distinction between expulsion and deportation, migrants have the opportunity to try to re-enter the U.S. within a few hours of expulsion into Mexico. Therefore, border expulsions have reached a 20-year high, particularly amongst single adults attempting to cross the border.

With looming pressure on the Biden administration to end Title 42 provisions, the future of Title 42’s implementation is uncertain. However, on July 26, 2021, DHS announced that “certain family units who [we]re not able to be expelled under Title 42 will be placed in expedited removal proceedings.” Previously, the Title 42 policy was applied to less than half of family encounters, which meant that continuing the policy would result in more migrant families entering the U.S. In order to quell the influx of migrant families, the Biden administration is ramping up its use of expedited removal proceedings. With this new update, coupled with an increase in COVID-19 cases due to the Delta variant, it looks like the administration will not be ending the Title 42 policy anytime soon.

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