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Albany Legal Blog

Title 42. What Exactly Is It?

On Behalf of | Jan 31, 2023 | Immigration

Last week a longstanding client of mine came to the office with one of his siblings and her six children.  They had recently been paroled into the United State at our southern border, and they were seeking assistance from our office so they could apply for asylum in the United States.

Notwithstanding then-President Trump’s issuance of an emergency regulation to implement specific aspects of U.S. health law that few had ever heard of before (i.e., Title 42), our clients were (eventually) able to be paroled into the United States so they could seek safety that was not available to them in their home country, and a better life.  But it wasn’t easy for them, and it’s not easy for asylum seekers generally speaking.

To say that the rules for someone to apply for asylum have changed over the years would be a huge understatement.  They evolve through changes in the law, regulations, case decisions, and so on.  The result is a process that, today, creates barriers for aliens to avail themselves of protections under our law, including obstacles to apply for asylum and a “process” that his hardly “due process” (indeed it’s devoid of fairness, humanity, and in my opinion violates U.S. law).

One of the most talked about changes to the asylum process over the past several years is what we colloquially know as Title 42.  So, what is it?

Section 265 of U.S. Code Title 42 (commonly known as “Title 42”) allows the Director of the Center for Disease Control (“CDC”) to “prohibit … the introduction” into the United States of individuals when the director believes that “there is serious danger of the introduction of [a communicable] disease into the United States.”  On March 20, 2020, the Department of Health and Human Services (“HHS”), at the direction of then-President Trump and his minion Stephen Miller, issued an emergency regulation to implement Title 42.  The HHS regulation allows officers of U.S. Customs and Border Protection (“CBP”), including its Border Patrol agents at our southern border, to implement any such order issued by the CDC.

How does it work?  Well, it’s complicated, but from an immigration standpoint, Title 42 affects asylum-seekers at the southern border through two main procedural impediments: First are what are called “turn-backs”, which affect asylum-seekers before they have reached U.S. soil.  Second are what are called “expulsions”, which (you guessed it) affect asylum-seekers after they’ve made it to U.S. soil.

Title 42 does exempt certain groups of people (e.g., U.S. citizens, green card holders, and anyone with valid travel documents), and technically speaking, turn-backs and expulsions apply to anyone seeking asylum at our southern border.  That said, there are nuances in terms of how Title 42 is applied (e.g., nationality,[1] family composition, geographic location at the time of crossing, and, hard as it is to write this, sometimes what side of the bed the border control agent woke up on[2]).

As I have written previously, U.S. law says that any person who is physically present in the United States or who “arrives” at the border must be given an opportunity to seek asylum.[3] Yet, despite this clarity in the law, then-President Trump, and even to a degree President Biden now, employed executive action and regulatory policies that deny due process, separate families, and often allow for (excessive and unnecessary) detention of those trying to escape the dangers of their home countries.  It needs to stop.

To be fair, the Biden Administration tried to terminate implementation of Title 42 in May 2022, but a federal court in Louisiana blocked it from doing so.  As of today, it remains in effect, and it will remain in effect until the Supreme Court decides the case Huisha Huisha v. Mayorkas,[4] which is a case as to the validity of Title 42 itself.  A decision is expected by the end of the Supreme Court’s current term.  My fingers are crossed.

[1]  For example, to be expelled under Title 42, an individual needs to be either a national of a country accepting expulsions from the United States or a national of a country Mexico will accept back under Title 42. As such, the nationalities that have been subjected to Title 42 expulsions have varied over time depending on a variety of factors.

[2] I regularly counsel clients, who may have an interview with an officer CBP, USCIS or ICE officer, that the success of his or her interview will often depend on which side of the bed an interviewer woke up on, how the traffic was on the way to his or her work, whether he or she had more than one cup of coffee, and so on.  Seems ridiculous, but sadly it’s true.

[3] Specifically, section 208(a)(1) of the Immigration and Nationality Act (“INA”) provides that “any alien who is physically present in the United States or who arrives in the United States … whether or not at a designated port of arrival … may apply for asylum[.]” This seems pretty clear to me.

[4]  598 U. S. ____ (2022)