Should we still be expelling migrants under Title 42?

Before COVID-19 was declared to be a public health emergency, U.S. Customs and Border Protection (CBP) complied with the immigration law provisions in Title 8 of the U.S. Code when it processed migrants who had made an illegal crossing at a land border. When COVID-19 was classified as a public health emergency, the CDC used its authority under the Public Health Service Act (Title 42 of the U.S. Code) to order CBP to expel illegal crossers without Title 8 processing.

The order applies primarily to migrants who make illegal crossings between ports of entry along the border with Mexico. Very few illegal crossers are encountered at the northern land border.

Migrants who are not expelled are subjected to immigration processing at crowded CBP processing centers where they face an increased likelihood that they will contract COVID-19 if they don’t already have it — or spread it to others if they do.

The Title 42 order requires CBP to process illegal land border crossers promptly. This typically takes 15 minutes in an outdoor setting, which is followed by expelling them at the closest port of entry.

Processing under the Title 8 immigration provisions increases the amount of time spent in CBP custody to an average of 50 hours for adults and 62 hours for families. 

Is the Title 42 order lawful?

Asylum-seeking migrants brought a class action against the Department of Homeland Security (DHS) in a U.S. District Court claiming that the order violates their right to apply for asylum. In a preliminary decision, the court granted a temporary injunction requiring DHS to suspend enforcement of the Title 42 order pending the outcome of the suit.

DHS appealed to a U.S. Court of Appeals and made an emergency motion to suspend the injunction pending the outcome of the appeal. The appeals court granted the motion. 

According to the judge, illegal crossers aren’t apprehended until they are already in the United States; therefore, the lawfulness of the CDC’s order depends on whether section 265 of the Public Health Service Act authorizes the expulsion of illegal crossers who are already in the United States — despite the fact that it does not mention the word “expel” or use any synonyms of that word.

The pertinent part of section 265 reads as follows:

“Whenever the Surgeon General determines that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States, and that this danger is so increased by the introduction of persons or property from such country that a suspension of the right to introduce such persons … is required in the interest of the public health, the Surgeon General … shall have the power to prohibit … the introduction of persons … from such countries … he shall designate in order to avert such danger.” [This authority has been delegated to the CDC.]

Moreover, the INA’s provision dealing with migrants suspected of having a communicable disease requires a determination that they actually have such a disease before they can be removed. INA section 1182(a)(1)(A) provides that aliens are inadmissible when they are “determined to have a communicable disease of public health significance.”

The district court judge concluded that the group bringing the suit is likely to prevail with their claim that the CDC’s order is unlawful.

But the judge’s analysis of the language in section 265 doesn’t take into account how old the provision is. It was enacted in 1944, which was eight years before the INA was enacted. It is not realistic to expect current expulsion terminology.

In any case, the language in section 265 is clear enough. Congress wanted migrants coming from a country with a communicable disease to be removed before they could introduce the disease into the United States.

A contemporary analysis of the Public Health Service Act in an August 1944 Social Security Bulletin observes that it established an important weapon against contagious infections being brought into the United States by giving the surgeon general authority to suspend immigration from foreign countries where there are serious epidemics.

The judge’s suggestion that section 265 doesn’t apply to people already in the U.S. would render it almost meaningless — by exempting all illegal crossers between ports of entry, 97.5 percent of the migrants attempting illegal entry from Mexico, and Mexico has a very high level of COVID-19.

In the first three months of fiscal 2022, CBP expelled 256,263 illegal crossers of the Southwest border — only 6,480 were expelled at ports of entry there. The relatively small number expelled at a port of entry can turn around and make an illegal crossing at another location along the 1,954-mile border with Mexico. This also is a problem with illegal crossers who are expelled, but making a second illegal crossing is a criminal offense punishable by imprisonment for up to two years.

Order is temporary

CDC has acknowledged the availability of testing, vaccines, and other mitigation protocols that can minimize the risk of contracting COVID-19. When CBP makes adequate use of such measures at Border Patrol processing centers, the order will no longer be necessary.

In fact, in an August 2021 order, CDC announced that it was no longer necessary to prohibit the introduction of unaccompanied alien children. They are processed by the Office of Refugee Resettlement (ORR), which has established a network of care facilities that provide testing and medical care, and it has instituted effective COVID-19 mitigation protocols.

Precautions aren’t just being taken to prevent illegal crossers from spreading COVID-19 into the United States. DHS also is requiring COVID-19 precautions for aliens who enter the United States lawfully.

It would make no sense to require pandemic measures for illegal crossers coming from countries with a COVID-19 epidemic but not for migrants coming from the same countries seeking lawful admission.

The government has suspended the entry of most unvaccinated nonimmigrant air travelers and migrants seeking lawful admission at land ports of entry. Also, all air travelers aged two and older are required to show documentation of a negative viral test result taken within a day of their flight’s departure for the United States.

Are these pandemic measures really necessary? I am not a public health expert. I agree with DHS that that determination should be made by the medical professionals at the CDC who are public health experts.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at https://nolanrappaport.blogspot.com.