What is Title 42 – the Trump-era immigration order at the US-Mexico border?

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President Joe Biden has pledged to implement a more humane approach to immigration than his predecessor, but a Trump-era order to quickly deport hundreds of thousands of migrants has sparked backlash from human rights defenders and a long legal battle that remains unresolved.

The order is known as Title 42, a reference to part of the United States public health code, and according to lawyers challenging the administration in court, its use violates federal and international law.

The Title 42 process has enabled the United States to deport more than two million migrants from the border, including a wave of Haitian asylum seekers last year, Venezuelans who came in greater numbers, and Mexicans, who make up the bulk of unauthorized migrants in the southwest. .

Despite a chorus of criticism from Democratic lawyers and lawmakers over the handling of the influx of Haitians at the Del Rio, Texas border last year, the administration has continued to defend the use of the title 42 in court.

President Joe Biden makes brief remarks before signing several executive orders directing immigration actions for his administration in the Oval Office of the White House, February 02, 2021.

Doug Mills/Pool via Getty Images, FILE

What is Title 42?

Title 42 is a clause in the Public Health Services Act of 1944 which “enables the government to prevent the introduction of individuals during certain public health emergencies”, said Olga Byrne, director of immigration to the International Rescue Committee.

Rarely used in recent decades, the Trump administration relied on an interpretation of Title 42 to issue a public health order during the COVID-19 pandemic that authorized the rapid deportation of migrants, citing concerns over to the spread of the virus, without giving them a chance to seek asylum, Byrne said.

Under federal law, any non-citizen in the United States can apply for asylum.

A woman reacts as she waits in line with other migrants seeking asylum in the United States to board a bus bound for Houston from the Val Verde Border Humanitarian Coalition after being released from customs and U.S. Border Protection, in Del Rio, Texas, Sept. 24, 2021.

Marco Bello/Reuters

“The legal problem that arises [with the use of Title 42] is that there is nothing in the law that allows the government to deport [migrants] without any due process,” Byrne said.

Migrants have been removed from the border more than 2.4 million times since the Title 42 order was implemented, according to US Customs and Border Protection data.

Who is removed under Title 42?

Hundreds of migrants have flocked to El Paso and the area continues to experience a high level of in-migration. Border Patrol apprehends migrants more than 2,200 times a day, according to a CBP official. Many will likely be removed under Title 42 while others will undergo standard immigration processing that allows more time to make humanitarian applications.

The Department of Homeland Security has also entered into an agreement with Mexico to accept, through Title 42, all Venezuelan nationals who cross the border illegally. Although Title 42 can be applied to any nationality, it also requires a foreign country to accept them upon removal.

The influx of migrants from Haiti last year came after civil unrest erupted following the assassination of Haitian President Jovenal Mose as well as a 7.2 magnitude earthquake that devastated the Caribbean nation.

Many Haitian migrants have also been in South America for about a decade since the 2010 earthquake caused massive damage and social and economic instability throughout Haiti, considered the poorest country in the Western Hemisphere.

The Department of Homeland Security said it plans to continue using Title 42 until the Dec. 21 deadline to roll back the protocols. A federal judge ordered an end to Title 42 last month, but a lengthy legal battle has its fate up in the air.

Other complicating factors include lingering concerns about COVID-19 testing and vaccination. Byrne said when the Biden administration turned back Haitian migrants, it did so without screening them for the coronavirus, despite COVID-19 tests being widely available as tourists and travelers continued to arrive. to the United States through the US-Mexico border.

“Title 42 is the most effective tool available to the government for rapid deportations to get people out of the United States quickly without due process,” Byrne said.

A migrant asylum seeker touches the face of her mother, who prepares to cross the Rio Grande River to the United States, after leaving the makeshift migrant camp in Ciudad Acuna, Mexico, September 23, 2021.

Go Nakamura/Reuters

The Biden administration exempted unaccompanied minors from deportation under Title 42, but defends in court its use of the public health order to keep families away, arguing that lifting the public health order would result in overcrowding at DHS facilities, and that an influx of migrants along with the delta variant surge, poses a public health risk.

The legal battle and the aftermath

The American Civil Liberties Union, joined by a group of civil rights organizations, sought a preliminary injunction in court last year, challenging the deportation of families under Title 42.

“Anyone who arrives at our border is supposed to be able to claim asylum if they are citing a fear of persecution,” said ACLU attorney Lee Gelernt, the lead attorney in the case.

“The Haitian situation is a dramatic and horrific illustration of the damage caused by the Title 42 policy,” he added. “…families are literally being pushed back into the arms of persecutors and cartels, without any hearing.”

Migrants take shelter along the Del Rio International Bridge at sunset waiting to be processed after crossing the Rio Grande River into the United States from Ciudad Acuna in Del Rio, Texas on September 19, 2021.

Adrées Latif/Reuters, FILE

As the deportation of the migrants continues, a protracted legal battle has unfolded between the government, the migrants represented by the ACLU, and now, a GOP-led state group seeking to intervene in the case.

The states argued they would suffer “irreparable harm” if Title 42 ends and migrants remain in the United States for longer periods of time. The GOP coalition of attorneys general asked the court to push back the Dec. 21 end date pending deliberations on an appeal.

“The government is using these two weeks now, rather than organizing at the border…to quickly deport as many Haitians as possible,” Gelernt said.

ABC News’ Luke Barr contributed to this report.

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