In JURIST’s latest explainer, we explore Title 42 § 265, which allows the U.S. President to prohibit the entry of people or property into the United States whenever the Surgeon General determines that there is a serious danger of the introduction of communicable disease.

The Centers for Disease Control (CDC) issued an order on March 20, 2020, authorizing the summary expulsion of persons traveling from Canada and Mexico “who must be held longer in congregate settings…to facilitate immigration processing.” These persons, according to the order, are individuals seeking entry to the United States without proper travel documents and individuals entering unlawfully between ports of entry.

The temporary suspension of entry under this CDC order is authorized for 30 days, renewable until such time that the introduction of COIVD19 is no longer a threat to public health. The Biden Administration has continued to renew the Title 42 Order.

Doesn’t the US always remove individuals who enter illegally? How is this different?

Before the Title 42 order, individuals who crossed into the United States between ports of entry and without inspection were processed under the Immigration and Nationality Act (INA). Under the INA, such an individual could be returned, removed, or placed in asylum proceedings.

The executive exercises a great deal of discretion when it comes to managing individuals apprehended at the border. Former President Barrack Obama earned the popular moniker “Deporter in Chief,” in part because his administration used this discretion to shift from returns (which carry fewer legal consequences) to removals (which have lasting legal impacts).

Individuals apprehended up to 100 miles from the border within 14 days of entry may be subject to expedited removal. Expedited removal gives low-level immigration officials the authority to order an individual removed without a formal hearing before an immigration judge.

It is worth noting that in 2017 the Trump administration expanded the use of expedited removal to include individuals anywhere in the United States who entered without inspection and have been in the United States for less than two years. This move faced a series of legal challenges, but was ultimately implemented in October 2020.

The Biden Administration is reviewing the policy but has yet to take action to modify, revoke or rescind the expanded use of expedited removal. In 2019, prior to the expansion of expedited removal, 46-percent of removals (164,296) were carried out through the expedited removal process. This process can happen in a matter of days or even hours. However, expedited removal cannot be used against asylum seekers.

Individuals apprehended at the border who express an intent to apply for asylum or a credible fear of return to their home country are screened by asylum officers. If an asylum officer determines that an individual has a credible fear of persecution in their home country, they are placed in formal removal proceedings for a judge to hear their defensive asylum claim. Asylum seekers are typically paroled into the country rather than detained.

How does this protect public health?

Historically, this section of Title 42 conferred quarantine powers to deal with the spread of cholera and yellow fever. The legislative history shows that references to immigration were removed amid concerns that all travelers could carry diseases, not just immigrants.

CBP claims that the order will prevent the spread of COVID-19 by preventing the congregation of individuals apprehended at the border in processing facilities. However, public health experts have consistently called for the CDC to rescind the order claiming there is no legitimate public health rationale for the policy.

Epidemiologists and other public health experts argue that a more effective strategy would include using masks and social distancing; processing migrants in well-ventilated or outdoor facilities; and allowing migrants to shelter in place with their families rather than holding them in immigration detention facilities.

Further, the United States has one of the highest incidence rates of COVID-19 in world and many have questioned the country’s overall response to the pandemic. Texas, which shares the longest land border with Mexico, has one of the highest COVID-19 rates in the US. Despite this fact, the Governor of Texas recently lifted the mask mandate and is attempting to prevent Texas cities from implementing public health measures.

Finally, the Title 42 order, when implemented in conjunction with regional travel restrictions, has lead to the unfortunate result that in order to be expelled under Title 42, migrant children had to first test negative for COVID-19. Critics argue that expelling migrants without process in order to prevent the introduction of a disease that is already spreading actively in the United States is at odds with an effective public health strategy.

From a fundamental rights perspective, what is the impact of Title 42 expulsion?

Individuals subject to exclusion under Title 42 are not processed in border facilities; rather, they are held for the shortest possible time and then expelled (rather than removed) to their last country of transit or their home country. They are not granted the minimal process available under expedited removal. They are not screened for asylum.

The United States, under the 1980 Refugee Act and Article 33 of the Convention Relating to the Status of Refugees, has committed to not return individuals to a place where their “life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion,” also known as the prohibition on refoulement. Title 42 expulsions do not honor this commitment.

Last month, 109,963 individuals were apprehended and expelled from the Southern border under Title 42. Currently, the vast majority of migrants (72-percent in February 2021) are processed under Title 42 rather than under normal immigration laws. The increase in Title 42 expulsions has been accompanied by an increase in border apprehensions. This is because those expelled under Title 42 repeatedly attempt to re-enter the United States. Before the order was implemented, only seven percent of people arrested at the border had crossed more than once; now, that number is 40 percent.

The Biden Administration has temporarily halted the use of Title 42 expulsions for unaccompanied minors. The following month, there was a 61-percent increase in the number of unaccompanied minors crossing the border. In March 2021, 19,000 unaccompanied minors were apprehended, the most ever in a single month and a 71-percent increase from February.

Many individuals denied entry under Title 42 and returned to Mexico or their home countries face physical violence, sexual violence, kidnapping, theft, and extortion. Black migrants have been disproportionately impacted by this policy as they face violence and discrimination in Mexico.

What is the current status of Title 42?

In February 2021, the ACLU of Massachusetts filed a complaint against the Department of Homeland Security challenging the lawfulness of Title 42 expulsions. The plaintiffs in the case are asylum-seekers who were expelled without inquiry into whether they would face persecution. The complaint alleges that the Title 42 Order violates immigration law, the Public Health Service Act, the Administrative Procedure Act, and the Equal Protection and Due Process Clauses of the US Constitution.

Despite pressure from immigration advocacy groups, human rights organizations, and public health experts, the Biden Administration has committed to continue expelling migrants under Title 42. A February 2021 Executive Order Mandated the review of the Title 42 Order to determine whether termination, rescission, or modification is necessary.

Recently, Secretary Alejandro Mayorkas of the Department of Homeland Security has stated: “If they come—if families come, if single adults come to the border, we are obligated to, in the service of public health – including the health of the very people who are thinking of coming – to impose travel restrictions under the CDC’s Title 42 authorities and return them to Mexico.”

On April 21, 2021, White House Press Secretary Jen Psaki confirmed that Title 42 is still in place, “because we are still in the midst of fighting a global pandemic.” There are no predictions of when the review of the Title 42 policy will be complete.