What is Title 42, the COVID-19 immigration policy Democrats want Biden to end?

Despite making some changes to U.S. border policy, the Biden administration for over a year maintained the most sweeping border restriction enacted by former President Donald Trump: a pandemic-era order known as Title 42 that has led to the quick deportation of hundreds of thousands of migrants in two years.

After two defeats in federal court in March and intensifying pressure from top Democrats in Congress, the Biden administration announced on April 1 it would wind down Title 42 by late May.

Despite supporting the end of other pandemic-related restrictions, Republicans have forcefully denounced the decision to end Title 42. Some centrist Democrats have also criticized the move, saying the administration is not prepared for a potential unprecedented spike in migrant apprehensions along the southern border after Title 42 is lifted.

What exactly is Title 42, and how has it been used by both administrations to expel migrants? Here are the facts.

What is Title 42, and how did it start?

On March, 20, 2020, at the outset of the COVID-19 public health emergency, Trump previewed a measure to curb “mass uncontrolled cross-border movement,” a move that would ultimately go further in restricting migration than any of his administration’s previous hardline border policies.

That day, Centers for Disease Control and Prevention (CDC) Director Robert Redfield invoked a World War II-era public health law to authorize U.S. border officials to promptly deport migrants. The law, found in Title 42 of the U.S. code, grants the government the “power to prohibit, in whole or in part, the introduction of persons and property” to stop a contagious disease from spreading in the U.S.

The order Redfield signed said the deportations were necessary to control the spread of COVID-19 in border facilities, protect U.S. agents from the virus and preserve medical resources. While Redfield’s initial order was enacted for 30 days, he extended it for another month in April 2020 and then indefinitely in May 2020.

Despite its stated public health justification, the CDC order authorizing the deportations was signed over the objection of top experts at the agency who did not believe the unprecedented policy was justified, according to congressional testimony and CBS News reporting.

Officials refer to a deportation under Title 42 as an “expulsion” since it is not carried out under immigration law, which imposes further penalties on those who are removed, such as multi-year banishments from the U.S.

How do the expulsions work in practice?

On paper, a Title 42 expulsion is supposed to occur soon after migrants are taken into custody, since the stated objective is to minimize the chances of them spreading the coronavirus inside U.S. detention facilities.

Most migrants processed under Title 42 have been expelled by land to Mexico, and that process can take just a few hours. However, the Mexican government has only formally agreed to accept the return of expelled migrants if they are Mexican, Guatemalan, Honduran or Salvadoran.

A smaller number of migrants are expelled through deportation flights, usually to their home countries. The U.S. is currently expelling some migrants to Brazil, Colombia, the Dominican Republic, Ecuador, Guatemala, Haiti, Honduras and southern Mexico. Expulsion flights to El Salvador and Nicaragua were discontinued.

Last September, the Biden administration launched the largest Title 42 air expulsion blitz to date, expelling 10,000 deportees to Haiti in three months after the sudden arrival of thousands of migrants from the Caribbean country in Del Rio, Texas.

The Biden and Trump administrations have argued that Title 42 supersedes U.S. asylum law, which allows migrants on U.S. soil to seek protection, regardless of their legal status. Hence, those processed under Title 42 are not allowed to file an application for asylum as a means to stop their expulsion.

Only an extremely limited number of migrants processed under Title 42 are screened for a lesser form of protection if they make “an affirmative, spontaneous and reasonably believable claim that they fear being tortured in the country they are being sent back to,” as outlined in internal DHS guidance.

How many migrants have been expelled?

Since March 2020, U.S. authorities along the border with Mexico have carried out more than 1.7 million migrant expulsions under Title 42, according to government statistics, as of the end February 2022.

While Title 42 applies to both land borders, U.S. officials along the Canadian border, who process a substantially lower number of migrants compared to their southern border colleagues, have used the policy on a limited basis, carrying out 15,000 expulsions in two years.

Title 42 expulsions do not represent the number of people expelled because some migrants, primarily single adults, are expelled multiple times. The expulsions have fueled an unusually high rate of repeat border crossings by migrants expelled to northern Mexico, because they do not carry legal consequences.

In nine months, the Trump administration carried out over 400,000 Title 42 expulsions along the southern border. During Mr. Biden’s first full 13 months in office, U.S. border authorities have carried out over 1.2 million expulsions, an analysis of Customs and Border Protection (CBP) data shows.

While the Biden administration has carried out 800,000 more expulsions than the Trump administration, Mr. Biden has also enforced Title 42 longer and faced a record number of migrant arrivals at the southern border.

How has Title 42 changed under Biden?

Between March 2020 and January 2021, when the Trump administration enforced Title 42, U.S. border officials recorded 552,919 migrant apprehensions, 83% of which resulted in expulsions. During the Biden administration, the U.S. has reported 2,276,871 migrant arrests, 63% of which turned in Title 42 expulsions.

Like the Trump administration, Biden officials have used Title 42 to expel most migrant adults traveling without children. Seventy-five percent of 1,429,988 U.S. border encounters with single adults in the past 13 months have led to a Title 42 expulsion, CBP statistics show.

The Trump administration expelled 69% of the migrant families who entered U.S. border custody between March 2020 and January 2021. Conversely, during Mr. Biden’s first full 13 months in office, border agents have expelled 25% of migrant parents and children processed as families.

But 656,951 parents and children traveling as families have entered U.S. border custody during Mr. Biden’s tenure, compared to 25,790 during the time the Trump administration enforced Title 42.

Under Mr. Biden, Mexican officials along some of the busiest parts of the border refused to accept migrant families with young children. In 2021, U.S. border authorities also encountered record numbers of Venezuelans, Nicaraguans and Cubans, who generally can’t be expelled to Mexico or their home countries. 

The Biden administration has declined to revive the Trump practice of using Title 42 to expel unaccompanied children. The Trump administration expelled nearly 16,000 unaccompanied minors before a federal judge in November 2020 halted the practice, finding it unlawful.

What happens to migrants who are not expelled?

Most unaccompanied children are transferred to shelters overseen by the Department of Health and Human Services, which is responsible for their care until it can place them with sponsors, who are typically family members living in the U.S.

Since the Biden administration discontinued family detention, most migrant families with children who are not expelled are released with a notice to appear in an immigration court, where they can seek asylum. However, that process can take years, due to the immigration court system’s backlog of over 1.7 million unresolved cases.

Almost half of 176,359 immigration court cases completed in fiscal year 2020 ended up with a judge issuing “in absentia” deportation orders to immigrants who did not attend their hearings, Justice Department figures indicate. That rate plummeted to 10% in fiscal year 2021, when the pandemic postponed many hearings, leading to fewer completed cases.

Some families could also be quickly deported to their home country under the “expedited removal” process if they do not pass initial asylum screenings or if border officials determine that they did not ask for asylum.

Single adult migrants who are not expelled under Title 42 are typically sent to immigration detention facilities or deported under expedited removal. In some cases, single adult migrants are released with court notices.

In February, for example, U.S. border officials carried out 91,513 expulsions, representing 55% of migrant arrivals that month. Another 8,335 migrants were quickly deported under regular immigration procedures, government data submitted to a federal court show. U.S. border officials released 39,069 migrants.

Another 21,426 migrants were transferred to detention centers run by Immigration and Customs Enforcement, which later released 15,974 of them, according to the statistics.

What is the future of border policy after Title 42?

On April 1, CDC Director Rochelle Walensky announced her agency would stop authorizing Title 42 on May 23, saying the expulsions of migrants are no longer necessary to protect public health.

In a 30-page order, Walensky highlighted increased vaccination rates in the U.S. and migrants’ native countries, the drop in COVID-19 cases and hospitalizations since the winter Omicron surge and the availability of other coronavirus mitigation measures, such as testing.

Walensky said she did not end Title 42 immediately to give border officials time to expand public health protocols, including a vaccination effort the government hopes will allow up to 6,000 migrants to receive a vaccine dose per day by late May.

DHS officials are expecting migrant arrivals to increase once Title 42 ends and have made contingency plans for several possibilities, including worst-case scenarios in which between 12,000 to 18,000 migrants are processed daily. As of the end of March, an average of 7,000 migrants were entering U.S. border custody per day.

The administration has said it is deploying additional Border Patrol personnel, contracting more bus and airplane operators to transport migrants and expanding capacity at processing facilities.

Homeland Security Alejandro Mayorkas said some migrants will continue to be expelled through May 23. After Title 42 is lifted, Mayorkas and other officials have said, the U.S. will strive to quickly deport migrants who don’t qualify for asylum through regular deportations.

The Title 42 termination plans, however, could be upended by litigation. On April 3, Republican officials in Arizona, Louisiana and Missouri filed a lawsuit against Title 42’s recession, telling a federal judge that the termination should be blocked because the CDC did not properly justify its latest decision.