Title 42 is a Trump administration-era policy that allows border officials to turn away migrants and stop them from seeking asylum based on health concerns related to the COVID-19 pandemic. The Biden administration has mostly maintained this policy, except for unaccompanied minors, characterizing it as a “health policy” rather than an “immigration policy.” However, the Centers for Disease Control and Prevention (CDC) has announced that it will entirely end the controversial policy.
Termination of Title 42 as to Unaccompanied Noncitizen Children
On March 12, 2022, the CDC announced that it was terminating its Order under Title 42 concerning unaccompanied noncitizen children. The CDC temporarily excluded these children from its Order in January 2021 and later formally excluded them. The District Court for the Northern District of Texas recently issued a preliminary injunction enjoining and restraining CDC from enforcing its Order to the extent that it excluded these children, finding that CDC had not adequately explained their exclusion.
In an attempt to address the District Court’s concerns, CDC opted to terminate its Order as to the unaccompanied noncitizen children based on their determination that expulsion of the children is unnecessary to protect the public health. In addition, the agency concluded that it could adequately care for the children through COVID-19 mitigation protocols, including testing, vaccinations, and medical care. They also do not discharge the children from facilities to parents or other sponsors until they are medically cleared for relief.
DC Circuit Strikes Down Part of Title 42
On the same day as the Texas District Court ruling, the U.S Court of Appeals for the D.C. Circuit in Huisha-Huisha v. Mayorkas struck a partial blow to the Biden administration’s continued use of Title 42 to expel migrants quickly. Although the Court allowed Title 42 to stand, it also ruled that the DHS may not return families of migrants to countries where they will suffer persecution or torture. In other words, DHS officials must conduct “withholding and torture” screenings before expelling families under Title 42.
CDC Announces End to Title 42 Order
On April 1, 2022, the CDC announced that it would end the existing Title 42 order as of May 23, 2022, finding that there is no longer a reason for the public health justification for the order and previous orders issued under Title 42. This delay will give DHS officials adequate time to prepare for the expected influx of migrants, such as obtaining more COVID-19 vaccine doses and similar measures. DHS Secretary Alejandro Mayorkas advised that border agents will process all migrants presenting themselves at the border after the expiration of the Title 42 order according to existing immigration laws.
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