Title 42 expulsions were removals by the U.S. government of people who had recently been in a country where a communicable disease was present. The extent of authority for contagion-related expulsions is set out by law in . During the COVID-19 pandemic, the Trump administration used this provision (section 265) to generally block land entry for many migrants. This practice was initially continued by the Biden administration before the program was ended with the end of the COVID-19 national emergency in the United States. Title 42 of the United States Code includes numerous sections dealing with public health, social welfare, and civil rights, but, in the context of immigration, the phrase "Title 42" came to be used to refer specifically to expulsions under section 265.
The program allows the U.S. Border Patrol and U.S. Customs and Border Protection to prohibit the entry of persons who potentially pose a health risk by being subject to previously-announced travel restrictions or by unlawfully entering the country to bypass health-screening measures. Its use was implemented under the Trump administration and has continued under the Biden administration to prohibit illegal immigration in the United States. Persons subject to the order are not held in congregate areas for processing and are instead immediately expelled to their country of last transit. If they are unable to be returned to the country of last transit (because that country will not accept them due to their nationality), the Border Patrol will work with its interagency partners to expel the person to their country of origin. Expulsions under Title 42 are not based on immigration status and are tracked separately from immigration. In some cases, this is not possible, and migrants may be expelled to a third country that will accept them based on previous residency. At the discretion of the administration, Title 42 can be used even for people who would normally have temporary protected status based on their country of origin.
The CDC's policy under Title 42 was unenforceable from November 15, 2022, when D.C. federal judge Emmet G. Sullivan ruled that the policy is a violation of the Administrative Procedure Act, until December 19 when the chief justice of the United States, John Roberts, issued a temporary hold on Sullivan's ruling, followed by the full court in a 5–4 vote on December 27. In the days preceding the policy's repeal on May 11, 2023, the number of migrants crossing the border increased. More than 10,000 illegal border crossers were apprehended daily between May 8 and 9, according to Brandon Judd, president of the Border Patrol union.
Code
Title 42 of the United States Code, Chapter 6A, Subchapter II, Part G, Section 265 states: §265. "Suspension of entries and imports from designated places to prevent spread of communicable diseases Whenever the Surgeon General determines that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States, and that this danger is so increased by the introduction of persons or property from such country that a suspension of the right to introduce such persons and property is required in the interest of the public health, the Surgeon General, in accordance with regulations approved by the President, shall have the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate in order to avert such danger, and for such period of time as he may deem necessary for such purpose." (July 1, 1944, ch. 373, title III, §362, 58 Stat. 704.)
History
The provision was enacted as part of the Public Health Service Act of 1944.
2020
In March 2020, the Center for Disease Control under the Trump administration issued a public health order allowing for the rapid expulsion of unauthorized border crossers and asylum seekers citing COVID-19 concerns. As it is considered an "expulsion" rather than a "deportation", the migrants are not afforded the right to make a case to stay in the U.S. before an immigration judge. Most migrants subject to Title 42 measures are returned to Mexico within hours. Trump advisor Stephen Miller had a role in shaping the policy, and has since defended it in interviews.
In November 2020, a federal court ordered a halt to the practice in regard to unaccompanied minor children; on January 29, 2021, the stay was lifted by DC Circuit Court of Appeals allowing minors to be expelled pending its review of the case.