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On April 1, the Centers for Disease Control and Prevention (CDC) announced that May 23 will usher in the end of Title 42. The end of the title is arguably a marker of the end of a two-year-long pandemic, as Title 42 was enacted for the first time on March 20, 2020, at the start of the COVID-19 pandemic. With an end to Title 42 in sight, clarifying what is to come next in immigration trends, and furthermore, an evaluation of whether Title 42 achieved its intended purpose in the first place will be key for the CDC.

What is Title 42?

The Title 42 Public Health and Welfare Act was originally passed in July of 1944 in response to the influx of returning WWII soldiers infected with tuberculosis and influenza. It addresses the “regulations providing for the apprehension, detention or conditional release of individuals to prevent the introduction, transmission or spread of such diseases.” Under Title 42, the president and the CDC have the right to order a halt, holding, or denial of immigrants entering the country during a period of high infection. Some persons can apply for exclusion from the title in extreme circumstances—however, the plaintiff requires a medical screening if the excuse is to be applied.

Similar practices of health screenings were put in place at ports of immigration prior to Title 42’s enactment. During the Spanish Influenza in 1918, for example, inspections were put in place in high-concentration migration ports like Ellis Island. However, the National Library of Medicine reports that rejection rates of immigrants on medical grounds in 1918 were estimated to be only 2 to 3 percent. The low rejection rates of immigrants, even during the height of a pandemic, in 1918 contrasts with what we are witnessing today. In 2020, the Migrant Policy Institute reported that over 1.7 million expulsions were carried out along the U.S.-Mexico border—immigrants and asylum seekers alike were expelled without the opportunity to argue their case. This is the highest record of apprehensions at the U.S.-Mexico border recorded in history.

What are Title 42’s consequences?

The most important result to note is Title 42 has not decreased immigration into the United States, but instead, has changed the way immigrants are entering the U.S. One way in which entry has changed under Title 42 is that it can occur repeatedly. Under Title 42, immigrants are returned to Mexico where they can try to enter several more times, sometimes even on the same day. That is why the highest record of apprehensions of immigrants in one year in the United States was reached under Title 42. In October 2020, 40 percent of all immigrants apprehended had crossed the border repeatedly; while in 2019, this figure stood at just 7 percent. In this way, Title 42’s attempt at preventing border apprehensions had an inverse effect. Title 42 did not discourage “illegal” entries into the United States. Higher regulation at legal points of entry only forced immigrants into less regulated points of entry, at times dangerous ones.

When the title was enacted in March of 2020, the United States and Mexico agreed that adult migrants who were denied entry into the United States would be deported to Mexico. But under the Biden administration, Mexico announced that they no longer would re-admit families with children under seven expelled under Title 42’s application. As a result, the Biden administration either flew these families back to their country of origin aside from Mexico, granted them asylum in the U.S., or placed them into ICE detention centers for months at a time. This is what resulted in Vice President Kamala Harris announcing to potential immigrants and asylum seekers during her visit to Guatemala to not come in the summer of 2021.

What are the concerns about Title 42 and lifting it?

Lawsuits against the U.S. have been taken up on each side of the aisle about receding Title 42, however, for different reasons. In the summer of 2021, several lawsuits from organizations such as the ACLU and Oxfam were filed against the United States after the negotiations to end Title 42 turned sour. In September, a federal court ruled that Title 42 expulsions are “likely unlawful.” The Biden administration was quick to appeal the ruling in hopes to continue turning away refugee families from the border. This appeal has reached a D.C. circuit court with the case continuing into the first-year anniversary of President Biden’s inauguration. Democrats, human rights advocates, and even the CDC itself have pushed for the executive branch to rescind Title 42, bearing in mind all of Title 42’s effects.

The act faced scrutiny as human rights advocates describe that pushing immigrants out of one disease-infected country into another does not properly address the issue of the migrants’ safety or America’s safety. Rather, it is a short-term solution by politicians to “protect” the citizens of one country at the expense of the safety of the one’s trying to enter.

Furthermore, human rights advocates argue that Title 42 does not address the crisis asylum seekers are fleeing—such as a two-year pandemic, an earthquake and assassination of the president in Haiti, ongoing violence in Central America, and now the struggle of Ukrainians. Title 42 in fact is a violation of international law on the part of the United States, actively denying the acceptance of asylum seekers which all countries must uphold. Article 33(1) of the 1951 Refugee Convention protects any “refugee” “against refoulement if his or her ‘life or freedom would be threatened because of race, religion, nationality, membership of a particular social group or political opinion.’”

The Trump and now Biden administration argued that Title 42 supersedes the Article 33 provision’s guarantee of rights for asylum seekers. Considering this is the first time in the nation’s history in which Title 42 has been put to work, there are still a lot of questions surrounding the extent and power of the title. A webinar was held in May of 2021 by the Physicians for Human Rights on the issue of Title 42 where a wide range of experts from human rights organizations around the country contributed answers to this question.

One of those experts was Lee Gelernt, the deputy director of the American Civil Liberties Union’s Immigrants’ Rights Project. Gelernt commented that even in Title 42’s creation back in 1944, it did not authorize expulsions, especially of asylum seekers. As further stated by Gerlernt, “[Title 42] has never in its history throughout the worst pandemics ever been used to send people back… Even if it could somehow be construed to authorize deportation, it cannot override asylum laws.”

Title 42 has also been criticized by progressives as not addressing the safety concerns for denying immigrants entry. Of the 1.7 million expulsions occurring under Title 42, at least 9,886 cases of kidnappings, tortures, rapes, and other violent attacks on people occurred as a direct denial of entry into the U.S. These figures do not even account for expulsions where an immigrant was deported to a country they fled from for fears of persecution.

On the other side, conservatives are concerned that rescinding Title 42 would result in an increase in infection rates by permitting COVID-positive illegal immigrants into the country. In fact, on April 4, the state of Louisiana, in conjunction with Arizona and Missouri, filed suit against the Biden administration for rescinding Title 42 for what it claims is “an imminent, man-made, self-inflicted calamity: the abrupt elimination of the only safety valve preventing this administration’s disastrous border policies from devolving into an unmitigated chaos and catastrophe.”

However, what the filing does not address is an alternate solution. Eventually, the pandemic will formally conclude and the recession of Title 42 would be consequently imminent. Title 42 is not meant to be a permanent solution to migration into the U.S. as it is only a preemptive measure to protect the integrity of health in the U.S. during increased times of infections.

The CDC fought against enacting Title 42 when it was first discussed considering the lack of evidence that prohibiting immigrants from entering a country has any real effect on the transmission of a virus. Community transmissions, rather than foreign viral introductions, are driving COVID-19.

Nevertheless, scapegoating immigrant populations for high infection rates is not uncommon in American culture. A poll by Axios was released in the summer of 2021 which observed a trend between vaccinated and unvaccinated persons’ placement of blame for high infection rates of COVID. Interestingly, 75 percent of vaccinated Americans blamed unvaccinated Americans for high infection rates, while 25 percent of unvaccinated people mostly blamed COVID transmission on foreigners.

What lifting Title 42 in May means

The most encouraging takeaway about the rescission of Title 42 is that the world may be emerging from the tail end of a two-year pandemic that has rattled the lives of billions. In terms of its impacts on immigration, many experts who disavow Title 42 argue that the potential number of encounters from rescinding Title 42 could not be more than the record high expulsions that occurred under the title. Furthermore, it is important to highlight that the mass of people waiting for entrance into the U.S. is not more than to be expected at this time of year as there usually is a yearly trend of increased immigration each spring. What remains up in the air is the Biden administration’s handling of pending suits regarding Title 42’s rescission. How the administration seeks to navigate these legal battles will be especially pivotal for the legacy of the Biden administration and furthermore indicative of whether Title 42 can be applied in the future.

Danielle O’Brien is a sophomore at La Salle University majoring in International Relations with a minor in Spanish. Danielle hails from Upper Darby Pennsylvania (located just outside of West Philadelphia), and one of her biggest passions in life is being a curator of change. Whether it be through her participation in FPYC or working as an ESL tutor for the BUSCA program at her university, she is striving to inform her peers about issues that concern them in hopes to increase one’s quality of life.