Title 42 refers to a Centers for Disease Control and Prevention (CDC) order that permits the barring of entry and expulsion of asylum-seekers at the southern border if there is a “serious danger of the introduction of [a communicable] disease into the United States.” In place since March 20, 2020, Title 42 has complicated the asylum process and created inconsistencies in its application.
Title 42 applies to asylum-seekers through two main mechanisms: “turn-backs” before they have touched U.S. soil and “expulsions” after they have touched U.S. soil. While these mechanisms officially apply to anyone seeking asylum, discrepancies in Title 42’s application exist depending on nationality, family composition, and geographic location at the time of crossing.
“Turn-backs” occur when a migrant approaches an official Port of Entry (POE) at the southern border and expresses fear or a desire to seek asylum to a Customs and Border Protection (CBP) officer while still on Mexican soil. In most cases, the CBP officer will refuse to allow the asylum-seeker to step onto U.S. soil, effectively preventing them from seeking protection in the U.S. To seek asylum at a POE, individuals must request a Title 42 exemption in advance through CBPOne.
“Expulsions” happen once an asylum-seeker is apprehended on U.S. soil, usually after crossing outside of a normal POE. Expulsions are not legally considered removal orders or voluntary departures, carrying no long-term repercussions for admissibility. Migrants processed under Title 42 do not have the right to seek asylum, but they should be provided with a high-threshold Convention Against Torture (CAT) screening by an asylum officer if they express a fear of being tortured upon removal.
Title 42 expulsions apply to all nationalities, but practical nuances exist. Migrants need to be a national of a country accepting expulsions from the U.S. or a national of a country Mexico will accept back under Title 42. The nationalities subjected to Title 42 expulsions have varied over time, depending on diplomatic relations and Department of Homeland Security priorities.
Access to the CBPOne Title 42 exemption process began on January 12, 2023, with a limited number of appointments available. The process is free, and noncitizens granted Title 42 exemptions are generally issued a Notice to Appear and a one-year parole, making them eligible for employment authorization.
Title 42’s practical application varies greatly for asylum-seekers who manage to touch U.S. soil. As a result, these individuals employ strategies such as entering the U.S. by land between official POEs or using “vehicular presentation” to drive onto U.S. soil at an official POE. These actions may result in criminal charges or prolonged Immigration and Customs Enforcement (ICE) detention.
Despite Title 42’s original intention as a public health tool, its use has expanded beyond this purpose. With the creation of parole programs and political efforts to codify the current incarnation of Title 42, it appears that the policy will continue for the foreseeable future. The implications of this period of border policy could impact the screening of clients who crossed the Southern border for decades to come.
AILA Practice Pointer