Title 42 US immigration rule to be dropped in late May

The controversial Title 42 US immigration rule, which allows US immigration authorities to quickly remove migrants and asylum seekers in the interests of protecting public health, will be scrapped by the Biden administration on May 23. The policy was enforced under the Trump administration following the coronavirus outbreak.

However, critics have warned that a ‘new wave of immigrants’ will descend on the US if the policy is lifted in what has been described as a ‘major shift in US border policy’. The initial decision to scrap Title 42 comes after the Biden administration was defeated by two federal court rulings in trying to retain the restrictions.

Amid guidance given by the Center for Disease Control and Prevention (CDC), US immigration officials have removed more than 1.7 million migrants from the US, under the Title 42 rule, over the last two years. 70% of expulsions have taken place under Biden, who retained the policy despite reversing many of Trump’s other controversial US immigration rules.

1940s public health law 

Title 42 was introduced as part of US public health laws formed in the 1940s, and has allowed US immigration officials to rapidly remove migrants to Mexico or their native homelands without allowing them to apply for US asylum – a legal safeguard that the government has argued it can execute amid a public health emergency.

Since August 2021, Title 42 has been under review by the CDC every 60 days to determine its continued necessity. The latest assessment was due recently, but has not yet been published. Spokesperson for the CDC, Kristen Nordlund, said: “The agency is still working on the latest review and more information will be released in due course.”

A number of high-profile Democrats who are considered allies of Biden, including Senate majority Chuck Schumer, have urged the President to stop Title 42 removals given that other pandemic-related US immigration rules have been dropped.

However, Republican lawmakers and some centrist Democrats, called on the Biden administration to keep the rule in place, claiming that revoking it would spark a sharp increase in migrant arrivals that would overwhelm US immigration authorities at the southern border with Mexico.

The impact of lifting Title 42 

A letter to Biden, written by Democratic Senators Kyrsten Sinema and Mark Kelly of Arizona, said: “Given the impact that changes to Title 42 could have on border communities, border security, and migrants, we urge your administration not to make any changes to Title 42 implementation until you are completely ready to execute and coordinate a comprehensive plan that ensures a secure, orderly, and humane process at the border.”

The Department of Homeland Security (DHS) has reportedly been preparing for a significant rise in migrant numbers when Title 42 is lifted in May. In what the DHS described as ‘worst-case scenarios’ approximately 12,000 to 18,000 migrants would enter the US on a daily basis, according to an internal contingency plan.

The DHS said that such scenarios, according to the contingency plan, would overwhelm US immigration authorities at the border and would require the government to dispatch thousands of federal employees to the southern border, double the number of buses and planes to transport migrants, and greatly increase capacity at Customs and Border Protection (CBP) immigration processing centers.

In recent weeks, the DHS has already mobilized hundreds of additional Border Patrol agents and started building new migrant processing facilities, which are supposed to accommodate individuals for no longer than 72 hours.

Compulsory COVID-19 vaccinations 

Meanwhile, CBP has recently launched a new initiative to vaccinate thousands of migrants a day against the coronavirus.

For more than a year, the Biden administration has resisted calls from asylum advocates to scrap Title 42, arguing that the policy was necessary to limit the spread of COVID-19 across processing sites.

However Title 42 was invoked by the CDC in 2020 against the advice of experts who claimed that the rule was not necessary for the protection of public health, according to a congressional testimony.

The pressure on the Biden administration to end the ruling has increased in recent weeks amid two conflicting court rulings. 

On March 4, a Washington D.C. federal appeals court ruled that the administration could use Title 42 to remove migrant families to places where the threat of harm was apparent, finding that the measure does not override US laws designed to protect people seeking asylum, fleeing persecution or torture.

Interview families with children 

As of late April, the Washington court’s ruling will require US immigration agents to interview families with children to establish whether they have a valid asylum claim prior to removing them – a prospect that has the potential to undermine Title 42’s main goal of reducing the number of migrants setting foot on US soil.

The Biden administration has not given any official notice that it intends to appeal this ruling.

American Civil Liberties Union (ACLU) lawyer, Lee Gelernt, said: “The termination of Title 42 would be welcomed, provided that the policy actually ends and a significant wind down begins immediately. However, this policy should have been scrapped earlier.”

“It is highly regrettable that the Biden administration kept this Trump policy in place for more than a year despite a clear consensus among public health experts that the policy was unjustified,” Gelernt added.

Increased migrant arrivals

Despite the Biden administration carrying out more removals under Title 42 than the Trump administration, Biden officials were quick to point out that they have faced an unprecedented number of migrant arrivals at the southern border since Biden took office.

In 2021, a record 2 million immigrant arrests were reported, more than half of which ended in expulsion under Title 42, according to CBP data.

However, the Biden administration has exempted several vulnerable groups from Title 42, including unaccompanied children, who were subject to removal during Trump’s presidency.

Meanwhile, earlier this month director of the CDC, Rochelle Walensky, terminated Title 42 orders that applied to unaccompanied minors in response to another court ruling stemming from a lawsuit filed by Republican officials in Texas.

As part of the order, Walensky said: “The US does not need to expel unaccompanied children to protect public health. Vaccination rates are rising in the US and in the home nations of migrants. Plus, there has been a drop in the number of COVID-19 deaths and cases since the spread of the Omicron variant in the winter.”

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