In March 2020, former President Donald Trump invoked the controversial Section 42 of the 1944 U.S. Code at the start of the coronavirus pandemic. The provision prohibits immigrants from entering the United States on the grounds that they pose a public health risk.

In April 2022, the Biden administration announced a plan to rescind enforcement of this controversial public health order. But on May 20, a federal judge in Louisiana opposed the Biden administration’s decision to rescind the order, ruling that the Title 42 policy that deported millions of asylum seekers to the southern border during Trump’s presidency would stand. We explain everything in this article.

What is Title 42?  

Title 42 refers to a rarely used section of the U.S. Code dating back to 1944. The law empowers federal health officials to bar immigrants from entering the country if it is determined that doing so will prevent the spread of infectious diseases.

The CDC invoked Title 42 during the March 2020 coronavirus outbreak in the United States. The provision gives Border Patrol agents the authority to quickly deport immigrants who attempt to enter the United States. They are allowed to seek asylum in the country, as was the policy before the pandemic. Immigrants deported from the United States under Section 42 will be returned to their home country or the nearest transit country.

Part of the justification for invoking Section 42 is to avoid detaining immigrants in overcrowded U.S. immigration centers as the highly contagious coronavirus spreads. But some advocates, elected officials and others have criticized the policy as more of an effort to limit immigration to the United States than a public health strategy.

Why is the Biden administration seeking to end the use of Title 42?

In announcing the decision to end the policy after more than two years, the CDC cited “the current public health situation and the increase in tools to combat COVID-19,” including vaccines that could be distributed as soon as migrants arrive at the border.

The Biden administration had originally planned to rescind Title 42 on May 23. But a federal judge and members of Congress are considering suspending the plan, fearing that the decision will lead to increased immigration in the coming weeks and months.

The CDC lifted Title 42 for a group of immigrants (unaccompanied minors) in March. It is currently seeking to do the same for two other groups of immigrants: single adults and those traveling with their families.

Louisiana federal judge’s decision

U.S. District Judge Robert R. Summerhays, a Trump appointee in Lafayette, ruled that the Biden administration’s April announcement of its intention to lift Title 42, a program to prevent the spread of infectious diseases in health orders, violated administrative law.

In his ruling, Summerhays said the Biden administration violated administrative procedure laws and that removing Title 42 would cause “irreparable harm” because states would have to spend money on health care, law enforcement, education and other immigration services.

“In sum, the court finds that the petitioning states have determined a substantial likelihood of success based on CDC’s failure to comply with the regulatory requirements of the [Administrative Procedure Act]. This finding is sufficient to satisfy the first injunction requirement,” Summerhays wrote in his decision.

DHS’s view of the controversial Title 42

The U.S. Department of Homeland Security said in a statement that Title 42 is not an immigration control tool, but rather a public health order. The department believes it “will abide by court rulings to continue to enforce the Centers for Disease Control and Prevention’s Title 42 orders while they still exist.

U.S. Department of Homeland Security’s warnings on migrants

On Wednesday, Homeland Security Secretary Alejandro Mayorkas discouraged migrants from coming to the U.S. border to be “turned back,” echoing sentiments he and other leaders have previously expressed.

“Individuals and families should not put their lives at risk by undertaking the dangerous journey to be turned back,” he said in a video the Department of Homeland Security (DHS) shared on Twitter Wednesday.

“The restrictions at our southwest border have not changed. Under appropriate circumstances, single adults and families encountered will continue to be deported under Section 42, and those who cannot establish a lawful basis for residence will be deported,” Mayorkas said Wednesday.

“The bottom line is that the U.S. borders are not open,” he said firmly. “Don’t come to the border. Don’t risk your life to be sent back.

Mayorkas also said Border Patrol agents are “already managing the numbers at historic levels because of the large number of people fleeing violence, corruption, poverty, climate change and other hardships.” He also warned that the number of migrants could increase further.

Title 42, a political weapon for Republicans?

While human rights groups have welcomed the Biden administration’s plan to end the use of Title 42, it has been met with opposition from Republicans – despite efforts to lift precautions and restrictions related to COVID-19. In this case, Republicans believe that lifting the public health order would create chaos at the U.S. border.

For Maureen Meyer, vice president of programs at the Washington Office on Latin America (WOLA). “Republicans intend to use this measure as a political weapon in the November midterm elections, raising concerns among a segment of the population about a massive influx of migrants across the borders,” she told DW.

Ana Saiz, head of the Mexican grassroots group Sin Fronteras, also believes that Republicans are using Title 42 as an excuse for pushbacks and that the policy is inherently xenophobic. The spread of the coronavirus cannot be blamed on migrants: “70% of them are vaccinated”, she stressed.

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