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  • Writer's pictureDenisse Molina

What is Title 42 and Why the US Must End it

What is Title 42?

Title 42 is an obscure U.S. public health law that allows the government to prohibit entry to those who potentially pose a health risk. Historically, Title 42 has never been used in the immigration context to remove people from US soil. Rather, its original purpose was to control transportation vessels, like airplanes and boats, to stop the spread of disease. However, in March 2020, the Trump Administration invoked Title 42, claiming that immediate expulsions were necessary to protect border communities from migrants carrying COVID-19 – despite public health data to the contrary.

The United States is using Title 42 to expel migrants to Mexico or their home countries, without any court processes or opportunities to seek asylum. Title 42 has been used to expel people from Haiti, Central America, Nicaragua, Cuba, Brazil, Peru, and most recently, people from Venezuela.

How does Title 42 Impact People Seeking Asylum?

Under Title 42, people seeking asylum are expelled without court processes, and in most cases, U.S. Customs and Border Protection (CBP) fails to adequately screen for asylum or properly assess the asylum seekers’ fear of returning to their home country and/or Mexico. Rather than giving asylum seekers the protections they are entitled to under federal law, they are expelled to Mexico, or in many cases to home countries with a proven record of harm, like Haiti. Their expulsion exposes them to dangerous and deadly conditions.

How is TCRP fighting Title 42?

In March 2020 – the early stages of Title 42 – the Trump administration detained adults, children, and babies in hotel rooms in Texas before expelling them to their home countries or Mexico without following basic immigration procedures.

In response to these practices, in January 2021, TCRP joined the Huisha-Huisha v. Mayorkas lawsuit seeking an immediate halt to Title 42. This lawsuit was filed on behalf of noncitizen families that arrived in the U.S. and were subjected to expulsion. TCRP and partner organizations argued that Title 42 does not authorize the government to expel migrants without any protections or processes afforded under immigration law.

In March 2022, TCRP had a partial win in its litigation battle to end Title 42 – the D.C. District Court held that the Biden Administration could not expel people to places where they would be tortured or persecuted – in essence, those with a fear would be exempted from Title 42. However, TCRP has received reports of CBP returning people to places where they not only fear torture or persecution but have experienced this harm. The lack of adequate fear screening processes and ensuring access to Title 42 exemptions are ongoing issues.

Most recently in September 2022, TCRP and its partners filed a motion requesting that the D.C. District Court dismiss the case and end Title 42 in its entirety. The case remains pending.

What is the current status of Title 42?

Updated 1/5/2023

On November 15, 2022, a D.C. District Court Judge reached a decision on Huisha-Huisha v. Mayorkas case. The Judge ruled that Title 42 was arbitrary and capricious and voided Title 42 in its entirety.

In December 2022, the Supreme Court ruled to keep Title 42 in place while it considers allowing a coalition of anti-immigrant states, including Texas, to intervene in our lawsuit.

In January of 2023, President Biden announced a new expansion of Title 42 to expel Nicaraguans, Hatians, and Cubans, similar to a previous expansion for Venezuelans. 

As  the Title 42 litigation continues, we are dedicated to sustaining our work to put an end to this inhumane policy and all other harmful immigration policies so that our nation can treat all people with dignity and transcend beyond borders.

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