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After more than three years, the mass expulsion policy known as “Title 42” that upended decades of asylum law is slated to end this week. The policies set to be implemented in its place will further violate, rather than comply with, the right to seek asylum. This FAQ delves into the history of the Title 42 policy, the stakes of its long-awaited end, and what comes next. 

1. What is Title 42?

“Title 42” refers to an arcane section of the Public Health Service Act, which former Trump advisor Stephen Miller weaponized during the COVID-19 pandemic to shut down the border entirely to people seeking asylum. Senior experts at the Center for Disease Control and Prevention (CDC), epidemiologists, and over 1,300 medical experts have emphatically denounced the junk science that was used to justify this expulsion policy. These expulsions stand in clear violation of domestic and international asylum obligations. Tragically, the Biden administration increased Title 42 expulsions, turning people away more than 2.3 million times between February 2021 and March 2023. The expulsion program led to a dramatic increase in repeat crossing attempts, fueling criminal networks preying on migrants forced into dangerous conditions. 

The humanitarian impact of Title 42 is breathtaking. After being expelled to Mexico, people have faced extraordinary danger because of their vulnerable status as migrants. Title 42 expulsions have resulted in nearly 13,000 documented cases of kidnappings, rape, torture, or other acts of violence for the people expelled. Title 42 has also served as a de facto family separation policy — thousands of children, including children as young as 10 years old, have arrived unaccompanied in the United States as families are separated trying to find safety.

The history of Title 42 — though short — is tumultuous. See the timeline below for a deeper dive into how the Trump administration invented a policy that the Biden administration continued, ended, then expanded.

2. When is Title 42 supposed to end? 

Title 42 expulsions should end at 11:59 p.m. EST on May 11, 2023, as the federal public health emergency declaration related to COVID-19 expires. The end of Title 42 is long overdue. NIJC and partner organizations decried the Biden administration’s delays in moving to end the policy upon coming into office.

3. What is likely to happen once Title 42 ends? 

The Biden administration seems intent on replacing Title 42 with other harmful, anti-asylum policies. These policies include:

  • Recycling asylum bans from the Trump era, in the form of a final regulation that would bar asylum eligibility for people who do not use a highly dysfunctional mobile app called CBP One to schedule their entry and who transit through other nations before reaching the U.S. border
  • The resurrection of a Trump-era rapid deportation policy, rushing asylum seekers through screenings while they are detained and with little-to-no access to attorneys
  • A new suite of policies, and enhanced reliance on existing measures, that include increased use of detention, surveillance, and home confinement to punish people seeking entry at the southern border
  • Increased criminal prosecutions for the act of migration, which are wasteful, rooted in racism and discriminatory in practice
  • A trilateral announcement to choke transit through Panama, interfering with the journey of countless Latin American, Asian, African, and Middle Eastern asylum seekers who have no other means to reach the United States
  • A new agreement with Mexico permitting the United States to continue to push back non-Mexican asylum seekers to Mexico after Title 42 lapses
  • Further militarization of the U.S.-Mexico border, with the Department of Defense sending 1,500 active duty troops to the area ahead of Title 42’s end

Instead of rolling out these anti-asylum, deadly and ineffective policies, the Biden administration can and should approach the end of Title 42 by ushering in compliance with domestic and international law.  

4. What should happen once Title 42 ends?

With the end of Title 42 approaching, there are distinct steps the Biden administration can take to provide a humanitarian response to asylum needs at the border. These include: 

  • Resuming asylum processing at ports of entry for everyone, regardless of access to mobile apps or pre-scheduled appointments, which are not required under U.S. and international law
  • Centralizing and streamlining coordination with local governments, nonprofits, and cities that receive asylum seekers to ensure a sustainable humanitarian response, instead of surging more resources toward an enforcement and punishment-based response
  • Ending harmful asylum offshoring and externalization policies, including agreements that lean on nations south of the United States to accept asylum seekers returned by the United States or halt their journey north
  • Additional solutions for a humane border policy proposed by NIJC here 

Until the Trump administration invented Title 42 expulsions, U.S. leaders had never seriously questioned the U.S. government’s legal obligation to process arriving asylum seekers. U.S. law codified this right decades ago and joined international treaties prohibiting countries from returning asylum seekers to harm. Title 42 and its many proxy anti-asylum policies mark a dark chapter in history which the Biden administration should leave behind while proudly affirming the United States’ commitment to ensuring protection for refugees and people seeking asylum.

5. Is anyone trying to prevent Title 42 from ending?

Yes, anti-immigrant state governments sued to prevent Biden from ending Title 42 in 2022. When a federal court held Title 42 unlawful, these same governments sought to intervene before the court compelled the Biden administration to end the mass expulsion policy in December 2022. These state governments were successful in convincing the Supreme Court to keep Title 42 in place while the Court considers their interest in Title 42’s continued use. 

Although more than 100 members of Congress have risen in opposition to Title 42, some have pursued its codification through legislation. These efforts continue today, including legislative proposals that drop all pretense that Title 42 has anything to do with public health — instead proposing new expulsion authorities that would give the executive branch sweeping authority to shut down asylum access at the southern border on a whim.

Extending Title 42 once more would set a harmful precedent that asylum laws can be suspended at will and under false pretenses, flouting domestic and international legal obligations. That’s why public health experts and top advisors from the Biden administration have made clear that nothing short of a full repeal of this expulsion policy will bring the U.S. in compliance with its humanitarian mandate. 

A short history of Title 42 expulsions

  • March 2020: The Trump administration unearthed a decades-old public health statute to shut down all asylum processing at the border. The Trump Title 42 policy hinged on an archaic racist trope that falsely equates migration with contagion. Between March 2020 and January 2021, the Trump administration conducted 462,792 expulsions.
  • January 2021: President Biden took the baton and continued mass expulsions of people seeking protection at the border. Biden officials repeated the same talking points from the Trump era, falsely calling Title 42 a “public health imperative.”
  • April 2022: The Biden administration finally announced plans to end Title 42 expulsions, citing increased understanding of the virus and widespread availability of vaccines, treatment, and masking among other mitigating measures.
  • May 2022: Following a lawsuit by anti-immigrant state governments, the Biden administration was enjoined from ending Title 42. With limited exceptions for unaccompanied children and those who meet discretionary exemptions, this injunction has resulted in continued mass expulsions of people seeking protection at U.S. land borders.
  • July 2022: Several members of Congress tried to halt the termination of Title 42 through legislation that would keep it in place indefinitely. No longer citing public health as the rationale, these legislators rebranded Title 42 as a border management tool, despite overwhelming evidence that Title 42 fuels repeated crossings by individuals and misleadingly inflates apprehension numbers at the border.
  • October 2022: Under the guise of a new parole program for Venezuelans, the Biden administration announced that it brokered a deal with the government of Mexico to receive expelled Venezuelans and dramatically expanded the use of Title 42 — now rebranded as a deterrence program.
  • November 2022: A federal court held Title 42 unlawful and vacated the policy, requiring the Biden administration to resume asylum processing by December 2022.
  • December 2022: The same anti-immigrant state governments that forced the Biden administration to keep Title 42 in place convinced the Supreme Court that they might have a litigable interest in the policy, suspending the scheduled end of the policy by federal court order.
  • January 2023: The Biden administration continued its expansion of the Title 42 policy, announcing it would begin expelling people from Cuba, Haiti, and Nicaragua to Mexico. Although the Biden administration simultaneously launched parole programs for those nations, the United Nations High Commissioner for Human Rights warned that those “cannot be a replacement” for asylum access, while Title 42 “vilifi[es] and “strips” people of their “long-recognized rights” to seek protection. That same month, the Biden administration rebuffed efforts to end Title 42 expulsions prior to May 2023.
  • April 2023: Customs and Border Protection (CBP) released its latest data showing that the Biden administration has conducted 2,358,093 expulsions between February 2021 and March 2023. See more below.
  • May 2023: The Biden administration issues a final regulation seeking to replace the Title 42 mass expulsion policy with a widely condemned asylum ban.

Azadeh Erfani is a senior policy analyst at NIJC.