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Immigration Law

A Guide to Title 42 Expulsions at the Border

American Immigration Council, Oct. 15, 2021

"The United States has long guaranteed the right to seek asylum to individuals who arrive at our southern border and ask for protection. But since March 20, 2020, that fundamental right has been largely suspended. Since that date, both migrants seeking a better life in the United States and those seeking to apply for asylum have been turned away and “expelled” back to Mexico or their home countries. These border expulsions are carried out under a little-known provision of U.S. health law, section 265 of Title 42, which the former Trump administration invoked to achieve its long-desired goal of shutting the border. The Biden administration has continued using this provision, and over 1.2 million expulsions have been carried out since the pandemic began, even though ports of entry remain open with nearly 11 million people crossing the southern border every month and thousands flying into the United States every day.

Despite the Centers for Disease Control and Prevention’s (CDC) claim that this order was necessary to protect the United States from a public health perspective, reporting has shown that the origin of this policy came from the U.S. Department of Homeland Security (DHS) and the Trump White House. Public reporting indicates that when Title 42 was originally created, CDC scientists expressed opposition to this invocation of Title 42, arguing that there was no public health rationale to support it. Ever since then, public health experts outside the CDC have continued to agree, arguing that while international borders remain largely open to other travelers, there is no need to turn away refugees and expel them to their home countries or Mexico. Since taking office, the Biden administration has continued to insist that Title 42 is necessary for public health purposes, despite the widespread availability of rapid tests and vaccination for COVID-19.

Federal courts have also rejected the legal basis for the use of Title 42 to expel individuals who have entered the United States. Multiple federal judges have ruled that the law does not permit expulsions, and instead only gives the government the authority to turn away people who have not yet entered the United States or impose quarantine for those already inside the United States. Decisions blocking the use of Title 42 against unaccompanied children as well as migrants who arrive in family groups are currently on appeal at the D.C. Circuit Court of Appeals. ... [More...]..."