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What is Title 42, the order to expel immigrants issued by Trump that Biden hasn’t overturned yet?

The Trump White House used a piece of public health legislation to deny refugee status on the US’ southern border and Biden has still not overturned it.

Biden yet to overturn Trump's Title 42 migrant ban

In the early weeks of the covid-19 pandemic, President Trump utilised a little-known section of the Public Health Safety Act to impose sweeping new restrictions on people entering the United States.

Title 42 of the 1944 act grants the federal government the ability to temporarily block non-citizens from entering the country, on the basis of an ongoing public health emergency. This has been used to remove migrants arriving on the US’ southern border, even if they had a value claim of entry for humanitarian reasons.

US Customs and Border data shows that, between October 2020 and August 2021 938,045 migrants were expelled under Title 42, without getting the normal due process. Since taking office, President Biden has carved out some exceptions to the restrictions but in broad terms the order still stands.

What is Title 42?

The 1944 Public Health Safety Act gives the government the right to “prevent the introduction of individuals during certain public health emergencies,” explains International Rescue Committee immigration director, Olga Byrne.

The Trump Administration used this as justification to immediately expel migrants from the border, claiming that they could contribute to the spread of covid-19 within the US. It allowed the White House to push through draconian border laws without the approval of Congress, but Byrne has argued that this interpretation of Title 42 is not legally sound.

“US law says that any person in the United States or at the border with the United States has a right to seek asylum,” said Byrne. “The legal issue at hand [with the use of Title 42] is that there’s nothing in the law that allows the government to expel [migrants] without any due process.”

Fresh calls for Biden to remove Title 42

Nearly 18 months after Biden took office, advocate groups are making renewed demands that the White House makes greater effort to overturn the ban. The Biden administration has made tentative efforts to reverse the ban but court rulings have largely insisted that the order should stay in place.

The court’s rejection stems from the suggestion that the Biden administration has not followed the correct law-making practice, failing to launch a notice and comment process ahead of the removal.

However this does not mean that Biden is powerless to nix the law and many are calling on him to impose a temporary freeze, also known as a ‘stay’, while waiting to overturn the Title 42 expansion in full.

“I think Title 42 needs to end immediately. The quickest way to do that is to obtain a stay,” said Lee Gelernt of the American Civil Liberties Union’s immigrants’ rights project.

“If the administration cannot obtain a stay then doing notice and comment quickly would be more immediate than allowing an appeal to go forward over months and possibly a year or more.”


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