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

The U.S. Supreme Court has blocked the Biden administration from lifting a controversial pandemic-era border restriction known as Title 42. The Donald Trump-era policy allows border officials to swiftly expel migrants seeking asylum at the nation's borders and shutter ports of entry.

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.

Title 42 was first invoked under the Trump administration during the pandemic in March 2020, with the reasoning it would mitigate the spread of COVID-19 in immigration facilities.

The policy, however, has continued to be used under the Biden administration as a tool to manage migration flows at the southern border even as the public health emergency has subsided.

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.

Is Title 42 still in effect?

Yes, Title 42 continues to be enforced at the country's borders.

The policy will remain in place until the Supreme Court issues a ruling. It will hear arguments in the case in February.

On Dec. 27, the high court ruled that the border restriction must continue as it weighs the arguments in the case.

Title 42 was set to lift on Dec. 21 but was allowed to remain in use by a last-minute order by Chief Justice John Roberts. The order stemmed from a request by an Arizona-led coalition of 19 conservative states that asked the court to intervene in the case.

In the ruling, the justices announced they would limit their review to whether the coalition of states was allowed to intervene in the case.

How did Title 42 get to the Supreme Court?

On Nov. 15, U.S. District Judge Emmet Sullivan in Washington, D.C., vacated the policy and gave the Biden administration five weeks to prepare for the end of the restriction.

The Biden administration subsequently appealed Sullivan's order, focusing on the authority of the U.S. Centers for Disease Control and Prevention to issue orders regulating migration.

After Sullivan's ruling, Arizona, alongside a coalition of other Republican-led states, filed a motion to intervene in the case in an effort to delay the end of Title 42. In the motion, the states argued that the Biden Administration had "abandoned their defense" of Title 42 by only asking for a five-week stay.

A federal appeals court then rejected a bid from the group of Republican states to intervene in the case, clearing a path for the litigation to head to the Supreme Court.

On Dec. 19, the Arizona-led coalition of states filed an emergency appeal to the Supreme Court, asking the high court to keep Title 42 in place.

“Getting rid of Title 42 will recklessly and needlessly endanger more Americans and migrants by exacerbating the catastrophe that is occurring at our southern border,” Arizona Attorney General Mark Brnovich, a Republican, said in a news release announcing the emergency request.

That same day, the Supreme Court then issued a temporary stay on the restriction before ordering the policy to remain in place on Dec. 27.

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 65% of encounters ended with a Title 42 expulsion thus far in fiscal year 2023, according to U.S. Customs and Border Protection data. In the Yuma sector, about 6% of encounters ended with a Title 42 expulsion.

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 2.4 million times in encounters with migrants. The restriction has bottled up tens of thousands of migrants in Mexican border communities who are waiting for their chance to request asylum in the U.S.

The ports of entry have turned away asylum-seeking migrants for nearly three years, with few exceptions granted through humanitarian parole. With official ports closed, many migrants have resorted to requesting asylum between ports of entry, often taking more remote and dangerous routes

Why were some migrants not expelled under Title 42?

Under Title 42, nationals from Guatemala, El Salvador, Honduras, Venezuela 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.

In October, the Biden administration expanded the scope of Title 42 to include Venezuelan migrants, a population that had been exempt from the restriction. The announcement included plans for a humanitarian program that would allow up to 24,000 Venezuelans into the country, given they have a supporting sponsor in the U.S. and after completing a rigorous application process.

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.

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

Under Title 8, migrants are processed and either can be removed from the country, placed in immigration detention or released with a notice to appear in immigration court later.

Migrants processed under Title 8 must then confront the U.S.’s congested immigration courts with a 1.9 million case backlog, according to Syracuse University's Transaction Records Access Clearinghouse.

If migrants are deemed inadmissible at a port of entry or are apprehended between ports of entry, they are subject to expedited removal under Title 8. Border officials have used both Title 8 and Title 42 to process migrants since the border restriction was enacted in 2020.

What happened when Title 42 was ending in May?

In April, the CDC determined that the public health order was 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."

In May, a federal judge in Louisiana blocked the Biden administration from rescinding Title 42, leaving the policy in place.

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 Brnovich, along with 20 other Republican attorneys general, in April.

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?