Title 42: A Controversial Law And Its Enactment

Title 42 is a Trump-era public health law that was used to justify a policy that allowed US Border Patrol to turn away hundreds of thousands of migrants, refugees, and asylum seekers attempting to enter the US at the US-Mexico border, presumably to limit the spread of COVID. The policy was first introduced in March 2020 and was lifted in May 2023.

Title 42 was a Trump-era policy

Under Title 42, migrants were returned over the border and denied the right to seek asylum. U.S. officials turned away migrants more than 2.8 million times. Families and children traveling alone were exempt. There were no real consequences when someone illegally crossed the border. So migrants were able to try again and again to cross, on the off chance they would get into the U.S.

It was a public health law

Legal battles ensued over the use of Title 42, with opponents arguing that it violated U.S. immigration laws, international refugee agreements, and human rights. Supporters, however, maintained that the policy was necessary for public health and safety during the pandemic.

The Biden administration initially attempted to lift Title 42 in spring 2022, but a court stayed the decision due to a lawsuit filed by Republican attorneys general. The policy ultimately ended in May 2023 when the COVID-19 public health emergency was declared over.

It allowed the US to quickly expel migrants at the southern border

The Biden administration initially tried to lift Title 42 in spring 2022, but a court stayed the decision based on a lawsuit filed by several Republican attorneys general. Title 42 was ultimately lifted in May 2023 when the public health emergency for COVID-19 was lifted.

The end of Title 42 raised questions about what would happen with migration at the U.S.-Mexico border. The Biden administration prepared for an increase in migrants by putting in place new policies cracking down on illegal crossings. These policies include strict consequences for migrants caught crossing illegally, such as a five-year ban on re-entry and the possibility of criminal prosecution.

It was in place for three years

The Biden administration tried to lift Title 42 in spring 2022, arguing that it was no longer needed as a public health measure, had become ineffective as a deterrence tool, and violated the right to apply for asylum. However, a court stayed the administration's decision, based on a lawsuit filed by several Republican attorneys general, and Title 42 remained in effect for an additional year.

In the first few days after the end of Title 42, unauthorized crossings at the border dropped dramatically, but it remains to be seen if this trend will continue. The Biden administration has tried to expand some legal pathways for certain nationalities, including employment-based visas and sponsorship programs.

It was lifted when the public health emergency for COVID-19 was declared over

The Biden administration tried to lift Title 42 in spring 2022, arguing that it was no longer needed as a public health measure, had become ineffective as a deterrence tool, and violated the right to apply for asylum. A court stayed the administration's decision, based on a lawsuit filed by several Republican attorneys general, and Title 42 remained in effect for an additional year.

The lifting of Title 42 introduced new opportunities and new risks. For the first time since March 2020, the US had to grapple with the public health, border control, humanitarian, legal, and ethical implications of a return to Title 8—the standard, decades-old rules for enforcing immigration law.

The Biden administration published a new rule that requires migrants to seek asylum by making an appointment at a port of entry through an online app and creates a presumption of ineligibility for asylum for those who try to cross between ports of entry.

At the same time, the administration expanded some legal pathways for certain nationalities, including employment-based visas for Central Americans, and a large sponsorship program for Cubans, Haitians, Nicaraguans, and Venezuelans. They also committed to opening regional processing centers in Latin America to provide humanitarian protection and information on legal pathways, although this seems to be a longer-term effort.

In the first few days after the end of Title 42, unauthorized crossings at the border dropped dramatically, but it remains to be seen whether this trend will continue, if the appointments system for asylum will work, if the legal pathways will provide real alternatives, and whether all of these measures will survive a series of lawsuits by groups on the left and the right.

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