What is Title 42, the order to expel immigrants issued by Trump that ends this week?

Title 42, a pandemic-era public health policy that placed restrictions on immigrants entering the US, comes to an end 11 May. The public health legislation was issued by the Trump administration and denied refugee status to migrants on the US’ southern border. The policy has been attacked by immigration rights advocates and public health officials, even called “arbitrary and capricious” by a federal judge.

Since taking office the Biden administration has tried to end the policy but doing so was held up by the courts. However, with the end of the covid public health emergency, which undergirded Title 42, the legal challenges have become “moot” in the words of US Solicitor General Elizabeth B Prelogar, a lawyer for the administration. The US Supreme Court soon after removed the case from its docket and lifted a stay keeping the measure in place.

What is Title 42?

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 valid claim of entry for humanitarian reasons.

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.”

Since Title 42 was issued, it has been used by authorities at the border over 2.8 million times to expel migrants according to data provided by the US Customs and Border Protection.

Biden administration will rely on new rules post-Title 42

Homeland Security Secretary Alejandro Mayorkas said last week that his agency was “surging resources to our border, modernizing processes, attacking the smuggling organizations with unprecedented law enforcement focus,” among other measures to prepare for a post-Title 42 period which in the near term he said would be “challenging.” His agency has released a six-pillar plan for dealing with migration in anticipation of increased numbers of people trying to cross the border.

The Biden administration will also roll out this week a new regulation on seeking asylum in the US. Refugees will largely be barred asylum at the US-Mexico border if they traveled through other countries on their way there. This is a departure from protocol that has been in place for decades.