Title 42

Title 42 – Health problem? Immigration problem? Or political problem?
by Jose Enrique Perez

Each person that you talk to about Title 42 tells you a different point of view. Let me explain.

Title 42, the Public Health Service Act of 1944, was designed to confer quarantine authority to health authorities that would apply to everyone, including US citizens, arriving from a foreign country. Quarantine authority was never meant to be used to determine which immigrants or noncitizens could or couldn’t be expelled or removed from the US. Importantly, when Congress was debating Title 42 passage, Congress specifically kept any reference to immigrants or immigration out of the law’s text because of concerns that public health authority could be used to discriminate against immigrants. The 1944 version was enacted to shift quarantine authority from the president to the surgeon general to avoid any political implications.

Title 42 expulsion policy has effectively closed the US border to nearly all asylum seekers based on the misapplication of this 75-year-old public health law. But how is being applied to immigrants then? The order issued by the Centers for Disease Control and Prevention (CDC), along with an accompanying rule published in the Federal Register, specifically bars just one category of people from entering the US: those crossing the borders from Mexico or Canada who would be held in congregate settings by US authorities, a category the order says will be primarily migrants who arrive without visas.

US law gives asylum seekers the right to seek asylum upon arrival in the United States, even if they arrive without inspection or prior authorization. Before expelling people who arrive in the US, US Customs and Border Protection (CBP) is legally required to conduct screenings to ensure they do not expel people who need protection. Those screenings are designed to ensure that no one risks torture or other likely serious harm after being expelled and returned to their country of origin. However, with the application of Title 42, CBP skips that legal requirement and no screening was being made.

So how this Title 42 heath issue became a political issue? Well before the Covid-19 pandemic, Stephen Miller, White House adviser to then-US President Donald Trump, floated the idea of using the government’s public health authority as a means of achieving the administration’s long-pursued goal of closing the border to asylum seekers. At the time, White House officials and attorneys reportedly told Miller, who has promoted white nationalist ideologies, and Trump that they lacked the legal authority to do so. So basically, Title 42 was never an immigration policy and it never worked as such at the southern border. It was a public health order that President Trump manipulated politically to further his exclusionary agenda and anti-immigrant rhetoric.

Just weeks after the CDC announced they would be terminating Title 42 on 5-23-2022, there was immediate pushback. Senators Lankford (R-OK) and Sinema (D-AZ) in the Senate have introduced the Public Health and Border Security Act of 2022, commonly referred to as the “Lankford-Simena Bill” Senate, S.4036. And Representatives Gonzalez (R-OH) and Golden (D-ME) have introduced a companion bill in the House, H.R. 7458 to keep expelling immigrants for health reasons.

Now, I ask you: What do you think – Health, immigrant or political issue? Now, a court ordered President Biden not to end it. So, we will have to wait and see what happens with Title 42.

Photo by Karolina Grabowska and Tara Winstead from pexels.

You should remember that this article is not intended to provide you with legal advice; it is intended only to provide guidance or information about your rights. Furthermore, the article is not intended to explain or identify all potential issues that may arise in connection with this program. Each case is fact-specific and therefore similar cases may have different outcomes.

I represent individuals involved in many areas. If you have any questions or concerns about a case or potential case, you can call me at (315) 422-5673, send me a fax at (315) 466-5673, or e-mail me at joseperez@joseperezyourlawyer.com. The Law Office of Jose Perez is located at 659 West Onondaga Street, Upper Level, Syracuse, New York 13204. Now with offices in Buffalo and Rochester as well!!! Please look for my next article in the June edition and stay safe, get vaccinated or boosted and stay away from the Virus. In addition to our current practice of Personal Injuries, Work Accidents, Social Security and Immigration, we now also practice Criminal, Traffic, Family, DWI and Divorce.


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