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How Does Title 42 Affect U.S. Immigration Law

U.S. immigration law is often complex on its own, but other statutes and policies can add further complications. Title 42, which concerns public health rather than immigration, has had a particular impact in recent years.

The United States has traditionally been known as a safe haven for individuals seeking refugee from humanitarian crises in their home countries. With the COVID-19 pandemic, however, migrants that may have otherwise sought asylum here are being automatically expelled and returned to their home countries without any chance to make their case for staying. 

This article will briefly discuss the Title 42 effects on U.S. immigration law. To learn more, give us a call, and we can discuss the specifics of how Title 42 affects U.S. immigration law and other issues that may affect your individual circumstances. Reach out today!

What Is Title 42?

First and foremost, before diving into the implications and ramifications of Title 42 on immigration law, it is vital to understand what Title 42 is. Title 42 of the U.S. Code actually dates back to 1944. Until recent years, it was a rarely invoked clause of public health law. Generally, the code addresses public health, social welfare, and civil rights. Title 42 allows the federal government to take emergency action to stop introducing infectious diseases into the United States. In other words, the federal government can prevent migrants from entering the United States if it believes doing so will prevent the spread of infectious diseases. 

As you might have already guessed, this rarely used section came to the forefront with the start of the COVID-19 pandemic. In March 2020, the U.S. administration invoked Title 42 and began removing asylum seekers from the United States. Instead of allowing them entry to seek refuge, they were expelled and prevented from entering the country. 

The government reasoned that allowing hundreds of thousands of migrants to enter the country may increase the spread of COVID-19. The purpose was to prevent and prohibit border control from holding migrants in congregant settings such as small crowded holding stations where COVID-19 could spread. It has since snowballed and has remained in effect for nearly three years after its initial use. Essentially, Title 42 gave the government unchecked authority to deport migrants without allowing them to apply for asylum. 

How Is Title 42 Border Policy Used?

Pragmatically speaking, Title 42 has been used differently in different border regions depending mainly on the demographics of migrants and the law enforcement resources available in the area. U.S. Customs and Border Patrol has used Title 42 against migrants evading border agents and those who turn themselves into Border Patrol seeking asylum. Migrants expelled under Title 42 are returned to their home country or the country they most recently traveled through. Often, this is immediate and can happen within hours of trying to enter the U.S. There is no hearing or time for you to plead your case. You are simply returned home. 

Notably, enforcement and use of the order have also varied under the different presidential administrations.

How Does Title 42 Expulsion Differ from Other Removal Processes?

The most significant difference in Title 42 expulsions versus traditional means of deportation is the swift and arbitrary nature of Title 42 expulsion. Title 42 essentially bypasses the asylum process and returns migrants to their home country without due process and usually immediately upon arrival to the United States. Many people may not have initially realized that this works against deterring illegal entry because there are no criminal consequences or negative implications to future asylum applications. Title 42 encouraged many to make multiple access attempts.

How Many People Have Been Expelled Since the Start of the Pandemic?

Since the start of the pandemic in 2020, there have been over 2 million expulsions of migrants at the border. Importantly, this number does not necessarily represent 2 million people but rather 2 million entry attempts and expulsions mainly due to repeat entries (i.e., individuals attempting to illegally cross the border, getting caught, returning home, and then attempting to enter again). 

Is Every Migrant Expelled Under Title 42?

Not every migrant that seeks entry to the U.S. is expelled under Title 42. In fact, there is a significant contingency for that to happen. To be removed under Title 42, their home country must have a prior agreement to accept them. A country may also choose to accept migrants from other countries. For instance, Mexico has taken migrants from Mexico, Guatemala, Honduras, El Salvador, and Venezuela.

Recently, other countries, including Haiti, Brazil, Guatemala, Honduras, El Salvador, Colombia, and Peru, have agreed to accept their citizens.

If a migrant cannot be expelled under Title 42, they will be processed under the traditional methods of Title 8.

The End of Title 42

While Title 42 will remain a part of the U.S. Code, its emergency enforcement will likely end with the end of the COVID-19 public health emergency, which is scheduled to conclude on May 11, 2023. The end of the public health emergency is likely to end the use of Title 42 at the border automatically.

Currently, the Title 42 public health emergency order is the subject of multiple lawsuits, court orders, and legal actions. In January 2023, the Department of Homeland Security (DHS) announced new measures to improve border security and create additional safe and efficient processes for individuals fleeing humanitarian crises to seek asylum in the United States lawfully. Border control agencies are taking these necessary steps to enhance border security while the Title 42 policy is still in effect and preparing for the day the policy is lifted. 

Should Title 42, in fact, end on May 11, the government is implementing plans to continue to restrict asylum seekers under Title 8, including a transit ban and expeditious adjudication of asylum cases. While lawsuits play out in the Supreme Court, Title 42 remains in place.  

Immigration Lawyers

If you are wondering how Title 42 affects U.S. immigration law and are concerned about its possible implications on you or a loved one, contact Pakpour Banks to schedule a consultation. The uncertainty of these immigration implications can be scary and overwhelming. Let us help you. If you require immigration assistance, contact us to schedule a consultation with our experienced lawyers.

Author Photo

Brian enters the family law profession with a refreshing approach to these proceedings: heal families; don’t destroy them. In some cases, this means the family is going to look different than it did before. In other cases, this means a new family is created where there was none before. Either way, individuals should leave family court knowing their voices were heard, and with healthy attitudes about themselves and those they love.

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