Title 42 and its Impact on Migrant Families

Introduction

Title 42 of the Public Health Services Act is a public health authority that authorizes the Director of the Centers for Disease Control and Prevention (CDC) to suspend entry of individuals into the U.S. to protect public health. This authority was implemented by the Trump Administration in March 2020 in response to the COVID-19 pandemic to allow for quick expulsion of migrants, including asylum seekers, seeking entry into the U.S. at the land borders.^1,2 The Biden Administration continued to enforce Title 42, with new exceptions provided to unaccompanied minors, but announced plans to end the suspension of entry on May 23, 2022. Due to court challenges, the policy remained in place pending the Supreme Court hearing arguments on whether a coalition of states, including Texas, could challenge a lower court ruling that ordered the policy be lifted. However, on February 16, 2023, the Supreme Court canceled the hearing for these arguments, following filing of a brief from the Biden Administration arguing that the case would become moot since the Biden Administration announced an end to the COVID-19 public health emergency (PHE) on May 11, 2023, which will consequently end the Title 42 border restrictions as well.

Although migration to the U.S. has recently slowed, largely due to Trump-era immigration policies and the COVID-19 pandemic, it is expected to ramp up following the lifting of the Title 42 suspension of entry.³ Ending Title 42 would allow those asylum seekers that have been waiting Mexico to seek asylum at the U.S. Customs and Border Protection’s ports of entry. It is anticipated that the number of migrants will seeking entry at the southern border will increase when Title 42 ends, and the federal government has outlined plans for responding to this anticipated increase .⁴

This brief provides an explanation of Title 42 and its application in border regions, the impact of Title 42 on border expulsions and the health and well-being of migrants, and a discussion of the potential implications of lifting Title 42 for immigration and the health of migrants.

How did Title 42 change policy for migrants seeking entry at the border?

Under U.S. immigration law, individuals have a legal right to claim asylum when presenting at ports of entry or if apprehended between ports of entry. An asylee is an individual seeking protection in the U.S. based on “persecution or a well-founded fear of persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion.”⁵ In 2019, prior to the implementation of the Title 42 restrictions on entry, there were over 307,000 total asylum filings, of which more than 46,000 individuals were granted asylum.⁶ The majority of these filings are defensive asylum applications for individuals who have been placed in removal proceedings before an immigration judge, while a smaller share are affirmative asylum applications for individuals who are not facing deportation.⁷ However, affirmative asylum applications are granted at a higher rate than defensive asylum applications. While affirmative asylum applications are processed by U.S. Citizenship and Immigration Services (USCIS), defensive asylum applications are processed through the Department of Justice’s Executive Office for Immigration Review (EOIR).

Defensive asylum seekers primarily hailed from the Northern Triangle countries and Mexico. Guatemala accounting for 20% of all defensive asylum applications in 2019, Honduras for 15%, and Mexico for 14%. Over 1 in 4 affirmative asylum applications in 2019 were from Venezuela, followed by Guatemala (10%) and China (10%). Among those granted asylum, individuals primarily hailed from China (16%), Venezuela (15%), and El Salvador (7%). A study conducted by Harvard University in 2021 found that 34% of asylum seekers reported being victims of intrafamily violence, 25% were fleeing violence due to their political activities, and 23% reported being victims of gang violence.⁸

Prior to the implementation of Title 42, migrants encountered at the border were processed and screened for asylum under Title 8 of the U.S. Code addressing “Aliens and Nationality”. Under Title 8, those determined to have a credible fear of persecution or other threats in their home country were either held in custody or released into the U.S. while their case was pending in immigration court. Those who USCIS determined not to have a credible fear were permitted to appeal this decision to an immigration judge. If the individual chose not to appeal or the immigration judge did not find fear, then the individual was removed. However, under the Migrant Protection Protocols, often referred to as the “Remain in Mexico” policy, created and implemented by the Trump Administration in 2019, asylum-seekers at the U.S.’s southern border must remain in Mexico while they waited for their hearings before a U.S. immigration judge. Although DHS took steps to end this policy under President Biden, a federal court order by a Trump-appointed judge required the Biden Administration to reinstate this policy in December 2021,  resulting in thousands of people waiting in Mexico under this policy.^9,10  Unaccompanied children that seek protection at the southern border are apprehended by Customs and Border Protection (CBP) and transferred to the Department of Health and Human Services (HHS) Office of Refugee Resettlement (ORR) for care, which seeks to release them to relatives residing in the U.S. while their immigration proceedings are pending.¹¹

In March 2020, the Trump Administration implemented Title 42 under the Public Health Service Act, which allowed for the immediate expulsion of migrants without screening for asylum. This order applies to all migrants arriving to the U.S. from Canada or Mexico regardless of their country of origin who would otherwise be held in a congregate setting at a port of entry or border patrol station. It does not apply to lawful permanent residents and their families, members of the armed forces or their families, or people who hold valid travel documents such as tourists  or those in a visa waiver program. Officials also have authority to make exceptions for individuals on a case-by-case basis. Under this order, the CDC Director is authorized to “suspend the introduction of persons into the United States” and CBP officials are directed to process migrants promptly (within 15 minutes in an outdoor setting) without screening for asylum and expel them back to Mexico or Canada or their country of origin.¹² The CDC stated the purpose of the order was to protect CBP personnel, U.S. citizens, lawful permanent residents, and other individuals from an increase in COVID-19 spread at land ports of entry, Border Patrol stations, and in the interior of the country. The order pointed to the introduction of individuals into congregate settings at the border and the increased strain this would put on the U.S. health care system during a public health emergency as primary reasons for implementing the restrictions on entry.

Title 42 continued to be enforced under the Biden Administration. However, unaccompanied minors were exempted from the order based on a district court ruling in November 2020^,13 and by a CDC order issued under the Biden Administration in February 2021.¹⁴ The CDC order continued to apply the original Title 42 order to single adults and families. Officials also maintained the ability to grant exceptions to the order on a case-by-case basis, and reports suggest that over 20,000 Ukrainian refugees seeking entry through the U.S.-Mexico border have entered via this channel.^15,16 However, as of April 25, 2022, Ukrainian refugees are no longer able to enter the U.S. under a Title 42 exemption and they must enter with a visa or through the Uniting for Ukraine program.¹⁷

The Biden Administration was planning to lift the Title 42 order on May 23, 2022. In the order that would lift the suspension of entry under title 42, the CDC indicates, “While the introduction, transmission, and spread of COVID-19 into the United States is likely to continue to some degree, the cross-border spread of COVID-19 due to covered noncitizens does not present the serious danger to public health that it once did, given the range of mitigation measures now available.” In making this determination, the CDC points to rising vaccination rates at home and abroad, including among the U.S. Department of Homeland Security (DHS) workforce; increased readiness to respond to new variants; and the availability of effective therapeutics, testing, and masks.

On May 20, 2022, a federal district court granted a preliminary injunction, which blocked the Administration from lifting Title 42.¹⁸ The Trump-appointed federal judge ruled that the Administration violated administrative procedural laws by not allowing for a public comment period before terminating Title 42; a process that usually takes several months. The Biden Administration issued a statement disagreeing with the district court ruling and announced that the Department of Justice will appeal the decision.¹⁹ The Administration’s plans to lift Title 42 is also facing challenges in the Congress with some policymakers expressing concern regarding the Administration’s preparedness to handle the increase in immigration activity that is anticipated to follow the lifting of the order.²⁰ The Supreme Court recently decided not to hear arguments over Title 42. The Biden Administration recently indicated it will end the PHE declaration on May 11, 2023, which will consequently end the Title 42 border restrictions as well.

How has implementation of Title 42 impacted immigration and the health of migrants?

There were over 1.7 million encounters at the Southwest land border in fiscal year (FY) 2021, of which over 60%, or roughly 1 million, were expelled under Title 42 authority (Figure 1).²¹ Enforcement encounters refer to “apprehensions or inadmissibles processed under CBP’s immigration authority;” these include individuals apprehended under Title 8 as well as individuals expelled under Title 42.²² While Title 42 applies to both the Northern and Southwestern Borders, nearly all Title 42 encounters occur at the Southwestern Border.²³ Title 42 encounters at the Southwest Border accounted for over 60% of all Southwest Border encounters in 2021, but the share of encounters that were under Title 42 varied by demographic group. Title 42 accounted for almost all single adult encounters and a quarter of family encounters, while Title 8 accounted for virtually all encounters with unaccompanied minors reflecting their exemption from expulsion (Figure 1).

As of March 2022, over 1.6 million single adults, nearly 200,000 individuals in a family unit, and nearly 16,000 unaccompanied minors have been expelled cumulatively under Title 42. The number of family expulsions under Title 42 also grew between FY2020 and FY2021, while expulsions of unaccompanied minors decreased, reflecting their exemption from the policy beginning in February of 2021. These encounter counts reflect repeat encounters with individuals, as each attempt by the same individual to cross the border is counted as a new encounter.²⁴ In the last 6 months of 2021, a quarter of the encounters under Title 42 were of the same individuals on multiple occasions, with recidivism rates under the authority being at their highest levels in over a decade. While Title 42 is intended COVID-19 exposure risk at the border, it has led to an increasing number of encounters at the border. This is in large part because, unlike Title 8, migrants apprehended under Title 42 are immediately expelled and, consequently, those with repeat encounters do not face any penalties and may make repeated attempts to cross.

Research suggests Title 42 expulsions have negatively impacted the health and well-being of migrant families.²⁵ Physicians, epidemiologists, and public health experts have repeatedly stated that Title 42 is counterproductive to preserving health and protecting individuals from COVID-19.²⁶ Physicians suggest that being in close proximity with other individuals while being temporarily detained or transported back to Mexico, lack of medical screenings, and lack of provision of necessary medication can all have adverse impacts on physical and mental health. Typically, the CDC recommends that asylees be provided an initial medical screening within 30-60 days of arriving in the U.S., but since Title 42 calls for immediate expulsion, such screenings cannot be provided.^27,28 Interviews conducted with over two dozen asylum seekers who were expelled under Title 42 authority found that a vast majority reported symptoms of depression, anxiety, and post-traumatic stress disorder (PTSD), and many reported that their children’s mental health was also impacted.²⁹ Sending individuals back to potentially dangerous situations they were fleeing also poses risks. Human Rights First has tracked over 10,000 reports of migrants and asylum seekers being kidnapped or facing physical or sexual violence following expulsion at the U.S.-Mexico border since President Biden was in office.³⁰ Title 42 may also be contributing to increases in family separations at the border. Media reports suggest that some families are separating from their children so that the children can seek entry as unaccompanied minors, who are exempt from Title 42 expulsions. These separations may lead to children facing dangerous situations traveling to the border and expose them to trauma and toxic stress. The impact of Title 42 on migrant families may also be exacerbated by the “Remain in Mexico” or Migrant Protection Protocols program, which requires thousands of migrants (including children) to wait for their U.S. immigration court hearings in Mexican border towns that can be dangerous and unsafe.³¹ Close to 80% of migrants receiving medical treatment from Doctors without Borders/Medecins Sans Frontieres at border locations in Nuevo Laredo, Mexico, reported being victims of violence, with many experiencing depression, severe anxiety, and post-traumatic stress.³²

How would lifting Title 42 impact immigration and health?

Immigration activity will likely increase if the Title 42 order is lifted. Since 2016, net international migration to the U.S. has seen a steep decline, with numbers reaching their lowest levels in a decade in 2021.³³ Much of this decline is attributable to the immigration policies enacted by the Trump Administration, including but not limited to border restrictions such as Title 42 and the “Remain in Mexico” program, as well as to the COVID-19 pandemic, which significantly reduced inter-country travel, especially from land borders. The North and Southwest U.S. land borders have historically been used as ports of entry by migrants from North America, Central and South America, and Mexico. More recently, displaced migrants from European countries like Ukraine have also used the Southwestern border between the U.S. and Mexico to seek entry into the country.³⁴ Many migrant shelters in Mexico are already overcrowded and/or full as asylum-seekers await the end of Title 42.³⁵ DHS is currently planning for various projections for processing post Title 42 which includes different plans for estimates ranging from 6,000 to 18,000 encounters per day.”³⁶ In addition, there has been an uptick in the number of unaccompanied minors arriving at the Southwest Border, which may, in part, reflect self-separation of families to enable unaccompanied minors to seek entry, given their exemption from Title 42 . In FY 2021, U.S. shelters received an all-time high of over 120,000 unaccompanied minors, up from 69,000 in FY 2019, which was the highest number prior to 2021.³⁷ Up to 100,000 Ukrainian refugees are also set to arrive in the U.S. primarily through Europe, while many have also arrived through the Southwest Border, with reports suggesting that they were exempted from Title 42.³⁸

Increased border activity may exacerbate backups and overcrowding at border processing facilities and shelters, which pose health risks. Backups and overcrowding were a concern before and throughout the enforcement of Title 42 and will likely continue to be a concern following the lifting of the order.³⁹ The unsanitary, “substandard”, and dangerous conditions at border processing and detention facilities have been in the limelight over the last few years, especially during the COVID-19 pandemic, and there have been multiple reports of illness and untimely deaths as a result of these conditions.^40,41 The ORR, which cares for unaccompanied minors also faces capacity issues. When the Biden Administration took office, ORR had less than half the shelter capacity needed to prepare for refugee arrivals and, therefore, the addition of unaccompanied minors referred to ORR exceeded its shelter capacity.

The Biden Administration has laid out mitigation measures to control the spread of COVID-19 following the anticipated surge in migrant arrivals. These mitigation measures include rapid testing for arriving migrants and facility workforces “to identify infected persons for isolation and identification of close contacts,” a vaccination program for all age-appropriate undocumented migrants who enter through the Southwest Border, engineering upgrades, personal protective equipment for facility workforces, and masking requirements for migrants.^42,43  The Administration has also cited the availability of both pharmaceutical and non-pharmaceutical interventions such as vaccines, treatment, improved ventilation, and enhanced disinfection procedures to scale down requirements for physical distancing in congregate settings such as border processing and detention facilities.

The Administration has also laid out a detailed “whole-of-government plan to prepare for and manage increased encounters of noncitizens” at the Southwest Border while safeguarding the health of border communities, the workforce there, and of noncitizens.⁴⁴ The plan focuses on the following six “pillars”:

• Increasing personnel, transportation, facilities, and medical support at the border. Increased medical support will include COVID-19 mitigation protocols such as testing and the administration of vaccines. The DHS has also expanded border facilities to hold 17,000 migrants, an increase of 4,000 since January 2021.
• Increasing processing efficiency at the border to prevent overcrowding at Border Patrol stations.
• Strict enforcement of immigration laws to discourage unlawful and repeat entries through increased use of detention, expedited removal, prosecution, and asylum adjudications.
• Expanding non-governmental organizations’ capacity to receive noncitizens and coordinating with local and state partners to mitigate the impact of increased immigration into their communities.
• Targeting and disrupting smugglers and transnational criminal organizations that traffic humans and drugs into the U.S.
• Working with countries south of the border, such as Mexico, Panama, and Costa Rica, to address irregular migration.

Immigrants may continue to face health challenges after admission into the U.S. Many immigrants, particularly refugees and asylees, have survived traumatic experiences in their home countries or in their journey to the U.S, leaving them at increased risk for mental health needs.^45,46 Federal and state governments provide assistance, including. short-term health insurance, to refugees and asylees, and they can enroll in Medicaid or the Children’s Health Insurance Program if they meet eligibility requirements without the five-year waiting period that applies to most other immigrants. ^47,48,49,50 The ORR also provides resources to help asylees navigate the health insurance landscape. However, even with these resources, immigrant families may face an array of challenges accessing care, including learning how to navigate the U.S. health care system and linguistic and cultural barriers to care.^51,52

Continued efforts to identify and address immigrant family needs when crossing the border and after entry in the U.S. will be key for supporting their health and well-being. Research points to the importance of cross-sector partnerships and collaborations, expanding capacity to address mental health needs, and identifying trusted individuals and organizations to help share information with families and navigate different experiences as part of these efforts.