What is Title 42 and how does it affect the Arizona border? The health policy, explained

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President Joe Biden's administration is ending a controversial border health restriction that had been held over from the previous Trump administration.

Here are some answers to your questions about Title 42.

What is Title 42?

Title 42 is a U.S. Code that relates to public health and welfare. Under section 265 of the code, the surgeon general, or in this case the director of the Centers for Disease Control and Prevention, can prohibit the entry or "introduction" of non-citizens in the interest of public health if there is a "quarantinable communicable disease" in a foreign country and "serious danger" that it can be introduced into the United States.

The clause was enacted as part of the Public Health Service Act of 1944, but was rarely used before the COVID-19 pandemic that began in 2020. It remained in effect even as international flights resumed and the southern border opened for foreign visitors.

Demonstrators hold signs during a rally for asylum seekers outside the ICE offices in Phoenix on March 22, 2022. They are demanding the Biden Administration end Title 42 and stop holding asylum seekers illegally in Mexico.
Demonstrators hold signs during a rally for asylum seekers outside the ICE offices in Phoenix on March 22, 2022. They are demanding the Biden Administration end Title 42 and stop holding asylum seekers illegally in Mexico.

The CDC announced it was lifting the restriction. What did it say?

The CDC determined that the public health order is no longer necessary after considering the wide range of mitigation measures and the low community levels of COVID-19 nationwide. Their public health assessment found that 97% of the U.S. population lives in counties with low levels of COVID-19.

CDC officials announced Title 42 will be terminated on May 23 to "enable the Department of Homeland Security to implement appropriate COVID-19 protocols."

What happens on May 23?

We still don't know. In late April, a federal judge temporarily blocked the Biden administration from continuing preparations to lift Title 42 on May 23.

U.S. District Judge Robert Summerhays, from the Western District of Louisiana, placed the temporary restraining order to stop the administration from moving forward. His decision stemmed from a lawsuit filed by Arizona Attorney General Mark Brnovich, along with 20 other Republican attorneys general, in April.

Summerhays held a hearing on Friday, May 13, and decided to keep a restraining order in place. He said he will issue a ruling by May 23. As of Friday, May 20, there hasn't been a final decision.

How does Title 42 affect the Arizona border?

Title 42 has rolled out differently in Arizona's two Border Patrol sectors.

In the Tucson sector, which covers 262 miles between New Mexico and Yuma County, about 80% of encounters ended with a Title 42 expulsion. In the Yuma sector, many fewer expulsions occurred. The differences are mainly related to the nationality of the migrants apprehended.

Sens. Kyrsten Sinema, D-Ariz., and Mark Kelly, D-Ariz., oppose ending the policy without a "comprehensive, workable plan in place," saying the would overwhelm Arizona border communities and stretch the resources of nonprofits that are already near capacity.

Along with a bipartisan group of nine other senators, they introduced a bill to prevent the administration from ending Title 42 until it lifts the COVID-19 national emergency declaration.

On the House side, Reps. Tom O'Halleran and Greg Stanton, both Arizona Democrats, have co-sponsored similar legislation. Stanton in a letter told Biden the approach was necessary "because the Administration's approach to the border has been largely reactionary."

"There are a range of ideas out there in Congress — Democrats, Republicans, others — some who support a delay of Title 42 implementation, some who strongly oppose it," White House Press Secretary Jen Psaki said April 20. "And there are a range of other ideas of reforming our immigration system. This would all require congressional action. We’re happy to have that conversation with them."

Exclusive: What to expect at Arizona border as a Trump-era restriction on immigration ends

How was Title 42 used during the COVID-19 pandemic?

On March 20, 2020, the Department of Health and Human Services issued emergency regulations that allowed the Centers for Disease Control to implement Title 42 of the U.S. Code. Agents and officers have been immediately expelling people crossing the border illegally between ports of entry ever since, using that order.

The order has been used more than 1.7 million times in encounters with migrants. About 27% of the time, the individual had been expelled at least twice. That means about 1.2 million people have been processed under the public health order.

The ports of entry have turned away asylum-seeking migrants for the past two years, with very few exceptions granted through humanitarian parole.

Why were some migrants not expelled under Title 42?

Under Title 42, nationals from Guatemala, El Salvador, Honduras and Mexico are sent back across the land border — a result of agreements with Mexican government authorities. All other nationalities, except for Ukrainians, are subject to be deported back to their home country or to a country that has agreed to receive them.

Sometimes agents could not expel migrants to Mexico or their countries of origin under Title 42. Unaccompanied children are exempt from the order and, due to operational reasons, CBP cannot expel everyone immediately.

In Arizona, agents are processing about 61% of encounters through Title 8, which is the agency's statutory immigration order.

Individuals are processed through Title 8, because of operational reasons, because they can serve as material witnesses in a case, or because they have been previously convicted of a crime.

Republic reporter Ronald J. Hansen contributed to this story.

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This article originally appeared on Arizona Republic: What is Title 42 and how does it affect immigration at Arizona border?