What is Title 42, the COVID border policy Democrats want Biden to end?

President Biden has recently come under intense pressure from his own party, including top Democrats in Congress, to discontinue Title 42, which progressive advocates denounce as an illegal relic from the Trump presidency that denies due process to asylum-seekers.

Despite supporting the end of other pandemic-related restrictions, Republicans have vocally backed Title 42, urging Mr. Biden to keep it. In fact, Republicans have accused the administration of not using the policy extensively enough amid an unprecedented spike in migrant apprehensions along the southern border this past year.

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 Title 42?

For over a year, the Biden administration has resisted criticism from advocates and outside public health experts and strongly defended Title 42, including in federal court. But recent court defeats could prompt the administration to scale back — or even terminate — the policy in the next few weeks.

On March 4, a federal appeals court in Washington, D.C., barred the administration from expelling migrant families with children to countries where they could be harmed, agreeing with the American Civil Liberties Union’s argument that Title 42 does not override humanitarian safeguards for asylum-seekers in U.S. law.

Later that day, a federal judge in Texas blocked the administration from exempting unaccompanied minors from Title 42, saying the exemption harmed Texas financially because of costs associated with medical services and schooling for migrant children.

In response to the latter ruling, CDC Director Rochelle Walensky revoked her agency’s Title 42 directives as they pertain to unaccompanied children, saying their expulsions are not warranted due to widespread vaccine availability, testing and improved pandemic conditions.

If upheld, the other court ruling, which has yet to take effect, would require U.S. border officials to interview families to assess whether they could face harm if expelled, or prompt them to end Title 42 for this population, as the administration has done for unaccompanied children.

The CDC has until March 30 to complete a new review of Title 42 and determine whether the policy should be kept, changed or terminated.