The Biden Administration’s move to end Title 42 restrictions along the southwest border is a welcome development. On Friday, April 1, 2022, the Centers for Disease Control and Prevention (CDC) announced it was ending the emergency order based on current health conditions and the increased availability of tools to fight COVID-19.
What is Title 42?
"Title 42" refers to a provision of the 1944 Public Health Services Act (PHSA). The PHSA is codified in Section 256 of Title 42 of the U.S. Code. It permits the government to "prohibit the introduction of persons" into the U.S. when a communicable disease presents a danger to public health.
How has a health law been used to control immigration to the U.S.?
On March 20, 2020, the Trump Administration issued an emergency rule to implement Title 42 in order to restrict entries at the U.S. southern border, citing the danger of allowing potentially infected persons from entering the county. Since then, border enforcement agencies have used Title 42 to deny entry and immediately expel many people crossing the border, including asylum seekers.
ABA President Reginald M. Turner sent a letter urging the Biden Administration to end the use of Title 42 to block asylum seekers from applying for protection and to expel them from the country without any adjudication of their claims. Moreover, the ABA’s House of Delegates, the ABA’s official policymaking body, adopted a formal Resolution concerning Title 42 at its Midyear Meeting in February 2022. That Resolution called upon the federal government to “maintain and provide to all persons seeking protection from persecution or torture an asylum system that affords them … a full and fair adjudication that comports with U.S. and international law.” The House of Delegates also urged the Executive Branch to abandon and not resume the use of Title 42 to block entry or to expel asylum seekers.
The Administration’s move to end Title 42 means that asylum seekers may once again seek refuge and safety as prescribed by U.S. domestic and international law.
Will there be a spike of migration into the US when Title 42 ends?
From March 2020 to March 2022, the U.S. Customs and Border Protection (CBP) agency used Title 42 to expel individuals from the country 1.7 million times. After more than two years of expulsions and limited access to asylum processing at the border, lifting Title 42 will certainly increase the number of people seeking to enter the country to apply for asylum. Additionally, as Department of Homeland (DHS) Security Secretary Alejandro Mayorkas commented, “[W]e know that smugglers will spread misinformation to take advantage of vulnerable migrants.” Mayorkas said DHS is increasing its ability to evaluate new arrivals and to remove those who cannot present a valid request for asylum.
In fact, while border enforcement agencies will no longer rely on health law to expel or bar entry at the border, DHS will still have full use of various enforcement mechanisms in immigration law to limit the flow of asylum-seekers into the country. This includes expedited removal and reinstatement of removal, detention authority, placement into the “Migrant Protection Protocols” program, initiation of removal proceedings and referral for criminal prosecution in certain cases. The lifting of Title 42 expulsions will by no means result in open borders or overly lenient immigration laws. It will only mean ending one program that put up complete barriers to the lawful process for asylum seekers in need of protection.
When will Title 42 expulsions officially end?
The CDC, in consultation with DHS, set a termination date of May 23, 2022. DHS is spearheading interagency, “whole-of-government” coordination to manage the expected influx of persons seeking entry at the border following the termination.
While the government has set its target end date, three states have already filed a lawsuit in the U.S. District Court for the Western District of Louisiana seeking to stop the government from ending Title 42 expulsions. Arizona, Louisiana and Missouri claim the CDC violated the Administrative Procedures Act (APA) by failing to allow for a comment period on the rule’s revocation. However, the CDC did not put Title 42 in place through the rulemaking and comment process. Instead, the CDC used a sunset clause in its Title 42 order requiring review every 60 days. It is through that review process that the CDC decided it was appropriate to end the program.
As of April 8, 2022, the Court has not issued an injunction against the CDC as requested by the three states.
What will ending Title 42 expulsions mean for ABA Legal Programs at the Southern Border?
The ABA’s Commission on Immigration includes two legal services programs providing crucial legal services at the southern U.S. border. The ABA’s South Texas Pro Bono Asylum Representation Project (ProBAR) provides legal information, pro se assistance and pro bono representation to thousands of immigrants and asylum-seekers in South Texas each year. The ABA’s Immigrant Justice Project (IJP) promotes due process and access to justice by providing legal services to individuals navigating immigration proceedings in the San Diego, California border region. These programs welcome the opportunity to again serve asylum-seekers at the border, because it is important for America to remain a place of welcome and refuge.
About the Author
Laura Flores Bachman is Director of Legal Programs and Operations for the Commission on Immigration. Prior to joining the ABA, Laura served as Senior Legal Counsel with ASISTA, a national nonprofit organization with the goal of advancing the rights of immigrant survivors of violence. Laura has over twenty-five years advocating for immigrants and asylum seekers across the country and is licensed in Massachusetts, Texas and Oklahoma. She is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization.