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What is Title 42, and what could happen after the order expires?

The U.S. has been using a public health rule to quickly expel asylum-seekers on the southern border.

Since the pandemic began, the United States has been using a public health rule designed to limit the spread of disease to expel asylum-seekers on the southern border.

Title 42, as it’s called, has been used more than 2.5 million times to expel migrants since March 2020, although that number includes people who repeatedly attempted to cross the border.

The public health rule was set to expire Wednesday, Dec. 21, but the Supreme Court has temporarily blocked the lifting of the order.

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How it started

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In March 2020, the U.S. Centers for Disease Control and Prevention issued an order limiting migration across the southern and northern borders, saying it was necessary to reduce the spread of the coronavirus.

The order authorized Customs and Border Protection to immediately remove migrants, including people seeking asylum, to prevent the spread of the virus. The order said areas where migrants were held often weren’t designed to quarantine people or allow for social distancing and could put border personnel and others at risk.

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The Biden administration continued the policy. While many Democrats pushed President Joe Biden to overturn Trump’s anti-immigration measures, some — especially in border states — have advocated to keep Title 42, saying the U.S. is unprepared for an increase in asylum-seekers.

The court fight

In 2021, a group representing immigrants who were denied the right to seek asylum sued to end the use of Title 42.

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As that case made its way through the courts, the CDC announced last April that the rule was no longer needed because vaccines and treatments were becoming much more widespread.

That sparked Republican-leaning states to file their own lawsuit aimed at keeping Title 42 in place. The states argued that ending the rule would lead to a surge in migrants to their states that would in turn take a toll on their services.

That argument found favor with a Trump-appointed judge in Louisiana who ordered keeping the restrictions in place. The judge found Biden’s administration failed to follow administrative procedures requiring public notice and time to gather public comment on the plan to end the restrictions.

But that ruling was effectively blocked by another federal judge in a separate lawsuit in Washington. That judge, appointed by Democratic President Bill Clinton, ruled on Nov. 15 that the Biden administration must lift the asylum restrictions by Wednesday, Dec. 21.

Conservative states trying to keep Title 42 in place had pushed to intervene in the case. But a three-judge panel on Friday night rejected their efforts, saying the states had waited too long. Louisiana’s Attorney General expressed disappointment with the decision and said they would appeal to the Supreme Court.

On Monday, the Supreme Court temporarily blocked the order to lift Title 42. But it is leaving open the prospect of lifting the restrictions by Wednesday.

The order by Chief Justice John Roberts comes as conservative states are pushing to keep limits on asylum-seekers that were put in place during the beginning of the coronavirus pandemic. They are appealing to the U.S. Supreme Court in a last-ditch effort before the limits are set to expire.

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In the one-page order, Roberts granted a stay pending further order and asked the government to respond by 5 p.m. Tuesday. That is just hours before the restrictions are slated to expire on Wednesday.

Does Title 42 affect all asylum-seekers?

Not really. The Biden administration has not used it with children traveling alone, only single adults or families. And the ban has been unevenly enforced by nationality, falling largely on migrants from Guatemala, Honduras and El Salvador — in addition to Mexicans — because Mexico allows them to be returned from the United States. Last month, Mexico began accepting Venezuelans who are expelled from the United States under Title 42, causing a sharp drop in Venezuelans seeking asylum at the U.S. border.

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Some other nationalities are less likely to be subject to Title 42 because costs or frayed relations with their home countries – Cuba, for example – make it difficult for the U.S. to send them back. People from these countries have become a growing presence at the border, confident they will be released in the U.S. to pursue their immigration cases. In October, Cubans were the second-largest nationality at the border after Mexicans, followed by Venezuelans and Nicaraguans.

What happens if and when Title 42 is lifted?

If and when Title 42 is lifted, asylum-seekers will be interviewed by asylum officers who will determine if they have a “credible fear” of being persecuted in their home countries. If they’re found to face a credible threat, they can stay in the U.S. until a final determination is made.

That can take years. While some are detained while their asylum process plays out, the vast majority are freed into the U.S. with notices to appear in immigration court or report to immigration authorities.

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The Department of Homeland Security said in a memo that the current system is not designed “to handle the current volume of migration nor the increased volume we expect over the coming weeks and months.”

It said it is preparing for a possible surge by cracking down on smuggling networks, speeding removal of those found to have little basis to stay in the U.S., and working with international partners to stem migration. It said it’s also seeking more money from Congress.

Ongoing negotiations between U.S. and Mexican officials come as more than 1,500 migrants...
Ongoing negotiations between U.S. and Mexican officials come as more than 1,500 migrants made their way from Ciudad Juarez to El Paso on Sunday, Dec. 11, after some said they were rescued by Mexican federal forces from a cell controlled by members of organized crime. The weekend’s surge came as U.S. and Mexican officials prepare for an increased migrant flow in anticipation of the Dec. 21 lifting of Title 42, the public health order that allows U.S. border agents to expel migrants without giving them a chance to apply for asylum under the justification that it was for pandemic safety.(Luis Torres / Special Contributor)