What is Title 42, the COVID policy for expelling migrants?

What is Title 42, the COVID policy for expelling migrants?Despite making some changes to U.S. border policy, the Biden administration maintained for more than a year the most sweeping border restriction enacted by former President Donald Trump: a pandemic-era order known as Title 42 that has resulted in the rapid deportation of hundreds of thousands of migrants over the past two years.

The Biden administration intended to terminate Title 42 in May 2022, citing a better pandemic environment and a decline in coronavirus infections. However, a coalition of Republican-controlled states persuaded a federal court to stop the termination on administrative grounds.

The court’s verdict has maintained Title 42 indefinitely, prohibiting certain migrants from obtaining asylum near the southern border of the United States. What is Title 42, and how has it been used to remove migrants by the current and prior U.S. administrations? Here are the specifics.

How did Title 42 come into existence?

At the onset of the COVID-19 public health emergency on March 20, 2020, President Trump foreshadowed a strategy to limit “bulk uncontrolled cross-border movement” that would eventually restrict migration further than his administration’s prior tight border measures.

That day, Robert Redfield, director of the Centers for Disease Control and Prevention (CDC), used a public health legislation from World War II to empower U.S. border officers to expeditiously deport migrants. To prevent the spread of a contagious illness in the United States, Title 42 of the United States Code allows the government the “authority to prohibit, in whole or in part, the admission of people and property.”

Redfield’s order said that the deportations were required to prevent the spread of COVID-19 in border facilities, protect U.S. agents from the virus, and conserve medical resources. The original 30-day duration of Redfield’s injunction was extended by one month in April 2020 and then indefinitely in May 2020.

According to congressional testimony and CBS News coverage, the CDC directive allowing the deportations was approved despite the objections of the agency’s top specialists, who did not feel the unprecedented policy was warranted.

Officials refer to a deportation under Title 42 as a “expulsion” since it is not carried out under immigration law, which imposes additional penalties, such as multi-year banishments from the United States, on persons who are removed. On September 1, 2021, migrants will be deported to Mexico under Title 42 at the Paso Del Norte International Bridge in El Paso, Texas.

How do expulsions function in practise?

On paper, a Title 42 expulsion is meant to occur shortly after migrants are apprehended, since the stated goal is to reduce the likelihood that they would transmit the coronavirus inside U.S. detention facilities.

The majority of migrants processed under Title 42 have been deported by land to Mexico, a procedure that may be completed within a few hours. However, the Mexican government has only legally promised to accept the repatriation of Mexican, Guatemalan, Honduran, or Salvadoran migrants.

Fewer migrants are removed by deportation flights, which often return them to their native nations. Current U.S. deportation destinations include Brazil, Colombia, the Dominican Republic, Ecuador, Guatemala, Haiti, Honduras, and southern Mexico. The cessation of expulsion flights to El Salvador and Nicaragua.

The Biden administration conducted the greatest Title 42 air expulsion campaign to date in September 2012, expelling 10,000 deportees to Haiti in three months after the unexpected arrival of thousands of Haitian migrants in Del Rio, Texas.

The administrations of Biden and Trump have maintained that Title 42 trumps U.S. asylum legislation, which permits migrants on U.S. land to seek refuge regardless of their legal status. Consequently, people processed under Title 42 are not permitted to submit an asylum claim to prevent their removal.

According to internal DHS advice, only an extremely small percentage of migrants processed under Title 42 are tested for a lower kind of protection if they make “an affirmative, spontaneous, and fairly credible assertion that they fear being tortured in the nation they are being returned to.”

How many refugees have been deported?

According to official figures, U.S. authorities along the Mexican border have expelled more over 2 million migrants under Title 42 since March 2020.

While Title 42 applies to both land borders, U.S. officers along the Canadian border, who handle a far smaller number of migrants than their colleagues along the southern border, have used the regulation sparingly, conducting out 23,000 expulsions since March 2020.

Some migrants, mainly adult singles, are expelled numerous times, therefore the number of Title 42 expulsions does not reflect the total number of individuals removed. Due to the absence of legal penalties, the expulsions have contributed to an extremely high incidence of repeated border crossings by migrants exiled to northern Mexico.

In nine months, the Trump administration conducted more over 400 thousand Title 42 deportations along the southern border. An study of Customs and Border Protection (CBP) statistics reveals that U.S. border agents carried out over 1.7 million expulsions during Mr. Biden’s first full 18 months in office.

While the Biden administration conducted more deportations than the Trump administration, Mr. Biden also enforced Title 42 for a longer period of time and confronted a record number of southern border entries.

How has Biden modified Title 42?

When the Trump administration implemented Title 42 between March 2020 and January 2021, U.S. border officers reported 552,919 interactions with migrants, of which 83% resulted in deportations. During the Biden administration, the United States has recorded more than 3 million migrant arrests, of which more over half resulted in Title 42 expulsions as of the end of July 2022, according to official figures.

Similar to the Trump administration, Biden administration officials have utilised Title 42 to remove the majority of unaccompanied migrant adults. CBP figures indicate that almost two-thirds of the 2.2 million interactions with single people at the U.S. border during the preceding 18 months resulted in a Title 42 deportation.

What is Title 42, the COVID policy for expelling migrants?
What is Title 42, the COVID policy for expelling migrants?


Between March 2020 and January 2021, the Trump administration removed 69% of the migrant families that entered U.S. border detention. In contrast, during Mr. Biden’s first 18 months in office, 23% of migrant parents and children processed as families were deported.

Under Mr. Biden’s tenure, however, more than 900,000 parents and children travelling as families were detained at the U.S. border, compared to 25,790 during the Trump administration’s enforcement of Title 42.

Under Mr. Biden, Mexican authorities near some of the busiest border crossings refused to allow families with small children. During the previous year, U.S. border agents saw a record number of Venezuelans, Nicaraguans, and Cubans, who cannot be deported to Mexico or their home nations.

The Biden administration has rejected to reinstate the Trump government’s use of Title 42 to remove unaccompanied minors. The Trump administration removed over 16,000 unaccompanied youngsters until a court judge suspended the programme in November 2020 for being illegal.

What is the fate of migrants who are not deported?

The majority of unaccompanied children are transported to shelters supervised by the Department of Health and Human Services, which is responsible for their care until they are placed with sponsors, who are generally U.S.-based family members.

Since the Biden administration ended family detention, the majority of migrant families with children who are not removed are released with notices to appear before an immigration court, where they may seek asylum. Due to the approximately 1.8 million pending cases in the immigration court system, this procedure might take years.

Nearly half of the 176,359 immigration court cases concluded in fiscal year 2020 resulted in judges issuing “in absentia” deportation orders to non-appearing individuals, according to data from the Justice Department. In fiscal year 2021, when the pandemic postponed several hearings, resulting in fewer finished cases, this percentage decreased to 10%.

If they do not pass initial asylum screenings or if border authorities find that they did not request asylum, some families might potentially be deported back to their home country through the “expedited removal” procedure.

Migrants who do not qualify for expulsion under Title 42 are often detained in immigration detention centres or deported via accelerated removal. In rare instances, lone adult migrants are discharged with notifications from the court.

What will border policy be like after Title 42?

Director of the CDC Rochelle Walensky declared on April 1 that her agency will cease approving Title 42 on May 23, stating that the deportation of migrants is no longer essential to preserve public health.

In a 30-page ruling, Walensky emphasised higher vaccination rates in the United States and the countries of origin of migrants, the decline in COVID-19 cases and hospitalizations since the winter Omicron outbreak, and the availability of additional coronavirus mitigation measures, such as testing.

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The Title 42 termination plans were thwarted by lawsuit, however. In May, a federal court in Louisiana ordered border agents to maintain the strategy on the grounds that it had been unjustly terminated, granted the request of Republican-controlled states like Arizona, Louisiana, and Missouri.

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While the government appeals the court’s decision, border agents have resumed expelling tens of thousands of migrants every month. In addition, the CDC has failed to expose the termination process to public comment, as the federal court in Louisiana recommended the agency do.

The administration has said that its preferred border strategy is centred on a regulation that tries to speed the asylum process in order to decide whether migrants should be deported or allowed to remain in a matter of months, as opposed to years. However, the regulation has been enforced on a limited basis so far.

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