The use of a public health policy to turn migrants away from the country’s borders is set to end next week, barring a potential ruling that could extend it.
The policy, known as Title 42, allows authorities to use concerns over public health to block migrants from entering the country at U.S. land borders.
In March 2020, former President Donald Trump put the policy — a provision of the Public Health Service Act of 1944 — into place and blocked thousands from coming across the borders, saying it would curb the spread of the COVID-19 virus.
During the 2020 presidential campaign and after his election, President Joe Biden vowed to end the policy.
On April 1, the Biden administration announced that it would terminate its Title 42 policy on May 23. However, that plan was put on hold when a judge ruled the policy would remain for the time being.
Two days later, on April 3, Arizona and 21 other states filed a federal lawsuit asking a judge to stop the government from lifting Title 42. On April 21, Texas filed a separate lawsuit asking for the same thing.
In May, a judge issued a temporary order barring the Biden administration from ending the program because the expected rush of migrants would impose costs on states for services such as health care and education. The states would not be able to recoup those costs, the judge ruled.
Last month, a federal judge ordered the Biden administration to stop using Title 42 by Dec. 21. The judge ruled that its use was “arbitrary and capricious.” The ruling came after families seeking U.S. asylum filed a lawsuit.
Nineteen states asked a federal appeals court to rule on their request to suspend the termination of the policy by last Friday.
“The States will suffer irreparable harm absent a stay from the termination of Title 42 for the reasons discussed in the motion,” according to the states’ argument in the case.
The court denied the request late Friday, ruling that Title 42 be lifted.
The states have asked for a seven-day administrative stay so that they can take their argument to the U.S. Supreme Court, according to the filing.
What is Title 42, how does it work and why are people divided over it? Here is what we know now.
What is Title 42?
Title 42 is an order that allows federal health officials to take extraordinary measures to protect public health and limit the “introduction of communicable diseases” to a community.
The order allows the federal government to temporarily block migrants from entering the US “when doing so is required in the interest of public health.”
To whom does the order apply?
The order specifically bars entry to those crossing the borders from Mexico or Canada, who would be held in congregate settings by U.S. authorities — primarily migrants who arrive without visas.
Title 42 not only applies to individuals crossing the border between ports of entry, but also applies equally to individuals seeking asylum at ports of entry.
If a migrant is turned away under Title 42, where do they go?
Mexico is accepting migrants barred from entry under Title 42 if they came from one of five countries: Mexico, El Salvador, Guatemala, Honduras, and Venezuela.
Who administers the policy?
The Centers for Disease Control and Prevention is the agency that has the power to issue orders concerning public health and communicable diseases.
What does the order allow border agents to do?
The order allows border agents to turn away migrants seeking entry at the country’s borders, citing that their entry into the country could compromise public health.
Who is objecting to lifting the order?
Sens. Thom Tillis, R-N.C., and Kyrsten Sinema, I-Ariz., are circulating a “draft framework” on immigration reform that would include a continuation of Title 42 for at least one year, according to Politico.
In a letter to Biden, Sens. John Cornyn, R-Texas, and Joe Manchin, D-W.V., and Texas Reps. Tony Gonzales, R, and Henry Cuéllar, D, blamed conditions at the border on the Biden administration, and called on Biden to extend Title 42.
“We have a crisis at our southern border. Never before in our nation’s history have we experienced this scope and scale of illegal border crossings, and we remain concerned that your administration has not provided sufficient support or resources to the men and women of the Department of Homeland Security (DHS) who are tasked with maintaining border security,” they wrote.
Attorneys general from 19 states are asking the courts to let the policy stand.
Where does the Biden administration stand on the policy?
In April, the administration announced plans to end the policy, but in October, the administration announced it was expanding the use of Title 42 to expel Venezuelans into Mexico.
The New York Times recently reported that the Biden administration has been considering adopting a different approach that would deny migrants the ability to claim asylum, unless they were previously denied asylum by other countries they passed through on their way to the U.S.
What happens when the order is lifted?
According to Department of Homeland Security officials, the agency is bracing for as many as 14,000 migrants per day to arrive at the southern border to cross over when Title 42 is lifted.
Earlier this year, DHS director Alejandro Mayorka issued a 20-page memo formalizing plans to deal with any surge in migrants, including adding resources to the border, enforcing legal consequences against migrants who try to cross the border without documentation, and trying to deter migrants from making the trip in the first place.
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