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US: What is Title 42 and why is its end such a big deal?

May 11, 2023

Title 42 is a controversial section of federal law that has been used to stop US-bound migration on the grounds of protecting public health. Now, the policy is expiring. What are the ramifications?

Migrants wait in line to be let in by the Border Patrol into El Paso, Texas
Image: Andres Leighton/AP Photo/picture alliance

What is Title 42?

Title 42 is a section of US federal law pertaining to public health matters.

One paragraph within Title 42 allows the director of the US Centers for Disease Control and Prevention (CDC) to stop migrants entering the US to prevent the spread of infectious diseases that could pose a public health risk.

As COVID-19 began spreading in March 2020, the US administration under then-US President Donald Trump invoked Title 42, ordering US border officials to immediately deport migrants who did not have valid documentation without granting them the right to apply for asylum. 

Critics say Title 42 has been misused to restrict US-bound migration, arguing the law does not ordinarily take into account migrants' nationality or residency status.

What impact did Title 42 have?

Title 42 reduced the administrative effort required to deport migrants. That's why the New York Times writes it has "become the most effective policy to manage a high volume of crossings without leading to regular overcrowding at border stations." At the same time, however, Title 42 eliminated penalties associated with deportations as codified under Title 8 of US immigration law. Ordinarily these penalties, ranging from $50 to $250 (€45 to €225) and up to two years in prison, increase if a person is apprehended multiple times.

US authorities recorded 6.6 million deportations between March 2020 and March 2023 at its land borders, 97% of which occurred at the southwest border with Mexico. Border agents invoked Title 42 in 2.8 million cases nationwide. Almost 60% of deportations were made under Title 8.

A US border patrol car is seen with a border agent
Title 42 allowed US border authorities to swiftly expel migrants Image: David Peinado/Pacific Press/picture alliance

Why is Title 42 expiring on May 11?

While US President Joe Biden's administration ended the practice of deporting unaccompanied minors, as was common under the Trump administration, Title 42 has remained in force. It was supposed to expire in November, but the US Supreme Court intervened at the request of several US states. In April, however, Congress and Senate decided to end the COVID-19 public health emergency declared by the Trump administration in January 2020.

With the public health emergency officially ending on May 11, US authorities lose their grounds for applying Title 42

What will happen at US borders once Title 42 expires?

The expiry of Title 42 means individuals seeking to enter the US can no longer be deported without a proper administrative process. Migrants will once more have an opportunity to apply for asylum in the US, through whether they will be granted a residence permit remains an entirely different question.

The US government is already working on laws to curb immigration from Latin America. According to reports, authorities envision setting up a system similar to the European Union model, whereby migrants must first apply for asylum in the countries they pass en route the US. This new rule would then apply to everyone, with the exception of nationals from neighboring Mexico and Canada as well as individuals arriving by airplane.

The human rights organization Washington Office on Latin America, however, warns this new system will violate US asylum law and lead to mass deportations.

How will border cities be affected?

Many border cities expect migrant numbers will rise again. Some are trying to set up more emergency shelters, as most of the existing ones are already at full capacity. Asylum procedures will not get any easier, and asylum lawyers are struggling to keep up with applications filed.

The federal government seems to be sending more security forces to the border regions but not providing any additional humanitarian or financial support. Border authorities will have no choice but to leave migrants unaccommodated.

That said, migrants may still prefer this to being deported to northern Mexico, where emergency shelters are equally scarce but life can be much more dangerous, according to reports.

This article was translated from German.

DW-Redakteur Jan D. Walter Kommentarbild App PROVISORISCH
Jan D. Walter Editor and reporter for national and international politics and member of DW's fact-checking team.