Title 42, Part 1: Questionable Upon Invocation, Certain Harm Upon Expiration

July 18, 2023

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Two months have passed since Title 42’s expiration. In the months and days leading up to its ending, certain national politicians and news media organizations created the impression through a constant drum beat of warnings of a “surge” of thousands upon thousands of migrants at the Southern U.S. border. They warned that a perceived, relaxed immigration policy threatened to overwhelm America’s robust border security apparatus. However, this unmanageable, anarchic situation failed to materialize—federal officials did not see a “major influx” of migrants when Title 42 ended[1]. Instead of the introduction of thousands of new migrants who would have otherwise been automatically expelled and denied their legal right to seek asylum under Title 42, the policy’s expiration resulted in the introduction of new, more restrictive asylum rules and processes. The processes, which require migrants to use a newly introduced cellphone application[2] and include the introduction of certain rules echoing aspects of the Trump administration’s attempts at functionally eliminating the ability of migrants to seek asylum prior to the introduction of Title 42, are now in effect. Accordingly, practitioners should be knowledgeable of them moving forward. We will continue discussing these changes in detail in a series of blog posts begun with our post about the new CBP One App. Before discussing the new rules and processes that remain following the settling of Title 42’s dust, it is helpful to understand the context explaining how we got here.

What is Title 42?

As an initial matter, it is important to note that Title 42 is not an immigration law; rather, Title 42 refers to a specific section of the United States Code, the comprehensive compilation of federal laws. Title 42 encompasses a wide range of laws related to public health and social welfare—it is not exclusively or even primarily focused on immigration. This section of the U.S. Code covers various health-related topics, including provisions related to the control and prevention of diseases, public health service, and the responsibilities of the Department of Health and Human Services.

How then was a health-related law permissively used nearly 3 million times[3] since March 2020 to expel individuals from the country arriving primarily to the southern border? How was a health-related law permissively used to disregard otherwise legal rights promised to those fleeing persecution? Within Title 42 is Section 265, commonly referred to as “Title 42 expulsions” or the “Title 42 public health rule,” granting the Secretary of Health and Human Services (HHS) the authority to take measures to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the United States[4]. Accordingly, in times of public health emergencies, the Secretary of HHS has powers otherwise within the jurisdiction of their colleague, the Secretary of the Department of Homeland Security.

In contrast, Title 8—not Title 42—is the most relevant and comprehensive Title of the U.S. Code compiling federal laws relating to immigration[5]. Title 8 of the U.S. Code, titled “Aliens and Nationality,” is divided into several chapters and contains the federal laws related to immigration and nationality in the United States. It encompasses a wide range of provisions that govern various aspects of immigration, including entry, admission, status, removal, naturalization, and the rights and responsibilities of non-citizens in the country.

Title 42: An Expedient Tool to Accomplish Anti-Immigrant Goals

From the beginning of what would become the COVID-19 global pandemic, the Trump Administration, at best, sent mixed messages regarding the severity of the threat of coronavirus generally. However, the Administration had no such ambivalence about the threat of the virus coming from the Southern border. The Trump Administration swiftly implemented policies that indicated COVID-19 posed a serious health emergency as far as migrants were concerned. The Trump Administration invoked Title 42, Section 265 and began expelling migrants on March 20, 2020. The administration justified the invocation of Title 42 to expel migrants and effectively closed the border as a measure to prevent the introduction and spread of COVID-19 into the United States. While at the same time, the Trump Administration repeatedly underplayed the severity of the virus and actively undermined necessary measures to secure the health and safety of Americans during the Pandemic.

[1] Garcia, Uriel J., “Border Didn’t See a “Major Influx” of Migrants When Title 42 Ended, Federal Officials Say,” Texas Tribune (May 12, 2023), https://www.texastribune.org/2023/05/12/texas-border-immigration-title-42-migrants/

[2] Houston Immigration Legal Services Collaborative, The New Asylum Rule – CBP One, (https://www.houstonimmigration.org/the-new-asylum-rule-cbp-one/)

[3] It is important to note that more than half of the expulsions carried out in furtherance of Title 42 were of individuals who sought to enter more than once. The number of expulsions under Title 42 therefore does not reflect an increase in the number of individuals trying to enter; rather, as a result of Title 42, over a million individuals sought to enter multiple times after an initial expulsion.

[4] The specific language of Section 265 states: \”The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.\”

[5] In addition to Title, several other Title contain provisions related to immigration related matters, including: Title 18, which includes provisions related to immigration offenses and penalties, such as illegal entry, smuggling, and fraud; Title 22, which deals with various aspects of U.S. foreign relations, including provisions related to the visas for diplomats and consular officers, diplomatic immunity, and international child abduction cases; and Title 26, which primarily focuses upon federal tax laws, and contains provisions relating tax obligations and benefits for non-citizen and foreign workers. Because immigration law is complex, Practitioners should be sure to consult regulations outside of the U.S. Code, as well as executive orders, administrative rules, and agency guidelines.

 

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