What is Title 42?

• Title 42 was the lynchpin of the Trump administration’s anti-immigrant campaign. The pandemic created the opportunity to close the border entirely—in March 2020, the administration announced that it was using a public health law, Title 42, to prevent asylum-seekers from entering the United States. 

• The border remains closed to almost all asylum-seekers under this policy.

• Unaccompanied children are currently exempt from Title 42, but this too is being challenged.

• Under Title 42, asylum-seekers are prohibited from entering the United States to seek protection, based on the idea that they present a threat to public health that is different from people with valid travel documents. 

• Instead, they are “expelled” by border agents who either push them back into Mexico without a hearing, or who detain them without a hearing until they can be put onto planes to their home countries. 

• In short, people are sent back to the exact dangers they fled, without any opportunity to ask for help, which is their right under U.S. law. 

• Public health officials immediately and forcefully pushed back, and have continued to argue that there is no public health benefit to Title 42. 

• Since the earliest days of his administration, immigration advocates and public health officials have called on President Biden to end Title 42 for everyone. 

Impact on children and families:

• While the Biden administration has exempted unaccompanied children from Title 42 expulsions, it has continued to expel both families and single-adults under Title 42. The U.S. Centers for Disease Control and Prevention (CDC) published a rule on February 17, 2021, that exempted unaccompanied minors from expulsion under Title 42. 

• The impact on children has been significant, as families nearing the border have been forced to “choose” between remaining in dangerous conditions with their children or separate in hopes that their children will be taken in as unaccompanied children. 

• Pressure to separate is particularly heart wrenching for the most vulnerable, those who fear persecution in the camps or who find themselves without enough food or medicine to care for their children. As word has spread across the border, and people hear of kids successfully making it in, parents who are desperate feel like they have few options. Violence in the camps is a real concern and many families have faced the possibility of kidnapping, rape, or assault. 

• Parents hope that relatives in the United States will be able to sponsor these children out of ORR custody. But sometimes family members cannot care for another child or do not qualify as sponsors. Others are scared to make themselves known to U.S. immigration officials as they themselves do not have legal status, and may put themselves – and children they may already be caring for – at risk if they were removed from the country. 

• As a result of Title 42, family separation continues, but largely outside of public view. 

• The number of children who have separated from family and crossed the border is unknown, but at the Young Center we have been appointed to many of these children. 

• Children who are taken into ORR custody face not only the trauma of the separation, but ongoing fear and anxiety about the safety of their parents and relatives left behind in the camps. They also have little information about their own future including their legal case, causing additional stress. 

• Many children have been warehoused in Emergency Intake Sites for weeks to months in substandard conditions. Some have faced abuse in these settings. 

• The state of Texas has brought suit against the Biden administration to remove the exemption for unaccompanied children from expulsion under Title 42 contending that allowing these children into the country exposes Texas residents to covid-19. Missouri also joined the suit against exempted unaccompanied children in September. 

• In mid-September, U.S. District Judge Emmet Sullivan ruled that the Biden administration had to limit the use of Title 42 to families writing that migrant families, “face real threats of violence and persecution” and are deprived of their right to seek protection in the United States. Within 24 hours, the Biden administration appealed this decision, in effect, arguing that despite known harm caused to children and families, it intended to continue to expel families. The U.S. Court of Appeals for the District of Columbia Circuit granted the administration’s request to stay a lower court’s ruling blocking the expulsion policy.

 Additional resources:

Report: US Border Expulsion Policy Results in Family Separations, PTSD, Human Rights Violations 

Welcome with Dignity: Court Ruling Will Endanger Families Seeking Safety 

Desperate and alone – The painful consequences of family ‘self-separation’ at the border