Immigration law experts raise questions about Title 42

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A small clause is causing major disruptions in immigration law this winter.

Federal courts, individual organizations, and state and federal governments are still weighing the ethics and use of Title 42, a clause in the 1944 Public Health Services Act that gives the U.S. the right to prevent people from coming into the country during public health crises. The federal government enacted Title 42 in March 2020 to limit the spread of COVID-19.

Now three years removed from the start of the pandemic, it is a policy that remains in place despite concerns from immigration law experts, including those in Minnesota.

One such concern, according to Immigrant Law Center of Minnesota Executive Director Veena Iyer, is that the clause does not guarantee what it was created to do.

“It has never been a provision that declined everyone,” Iyer said. “There has always been a distinction between citizens and noncitizens. One of the things that problematic here is that citizens and noncitizens are just as likely to contract COVID-19 and other illnesses.”

Iyer further explained that Title 42 makes seeking asylum legally nonexistent in the U.S. This undermines United Nations and U.S. law.

Additionally, many immigrants who are seeking to relocate to Minnesota are doing so to join their families and help contribute financially. However, because of Title 42, they are in limbo.

“They are tremendous contributors to our economy, as well as workers, and so there are, I think, missing people that could be part of our society and are not because of Title 42,” Iyer said.

Iyer is not the only Minnesota immigration expert concerned about Title 42. Hanne Sandison and Lindsey Greising of The Advocates for Human Rights also argue the clause is discriminatory to immigrants.

Greising, who is a staff attorney with Minnesota-based The Advocates for Human Rights, added Title 42 has meant that immigration advocates and legal experts have had to support their clients and combat Title 42 while bracing for new policies to replace the clause.

Sandison, the program director of the refugee and immigration program at The Advocates for Human Rights, warned that the clause has become more politicized than a legal dilemma for the courts to manage.

“Title 42 has become a political weapon,” Sandison said. “Any efforts to move forward on comprehensive immigration reform or bills that would benefit migrants in Minnesota were shut down or lost.”

Replacing Title 42 has been a major debate lately, but for those who work in immigration law, the back and forth is three years in the making. Greising compared working with Title 42 to a ping pong match.

The same year Title 42 was enacted, the Biden administration promised to resolve it, Griesing and Sandison explained. Plans to do so were not announced until April 2022, when it was announced the clause’s action would stop in May 2022.

However, nearly half of the states in the U.S. filed lawsuits stating that the end of Title 42 would have “a negative impact” on them, Greising explained. This was later rejected by a federal court for violating the Administrative Procedures Act. According to the ACLU, this was because Title 42 continued to be an active policy “long after there is any public health justification for it” and because it is dangerous for those seeking asylum.

As new the deadline to end Title 42 approached in late December 2022, plans to stop Title 42 were once again stalled by the U.S. Supreme Court.

The back-and-forth has only prolonged the headaches for immigration law experts and their clients — in every state.

“Immigration in the U.S. does not stop at the borders,” Sandison said.

As of January, plans for new procedures were underway, and the U.S. Supreme Court in February is considering whether states can intervene on Title 42.

Greising explained new proposed policies include a parole program for citizens of certain countries. The Department of Homeland Security also announced new regulations for “expedited removal.”

The final proposal, which Greising prefaced as “most worryingly,” is that a person would be barred from applying for asylum if they entered the country illegally or falsified a document to enter the country, unless they qualify for an exemption. This is considered the entry ban.

Greising argued these new policies make it more difficult for immigrants and asylum seekers, who may not have access to the necessary funds, supporters in the U.S. to help them, and air travel, as is required by the parole program.

“I think having a way to allow people to enter the U.S. safely and in an orderly fashion is good in theory, but what [the new policies are] essentially doing is, unless you do it in this particular way, you don’t get to come,” Sandison said.

As Title 42’s weight is still battled in court, Iyer encouraged legal experts to advocate against political arguments when considering the implications of Title 42 and new policies. Iyer cited laws, such as the Refugee Act, which allows anyone from anywhere to apply for the asylum in the U.S., as a more useful framework.

“What’s really important is for lawyers to get back to principles,” Iyer said. “We have a law of how we’re supposed to treat asylum seekers, and we can’t ignore that. We have to follow it.”

Correction: This article has been revised to clarify the focus of the U.S. Supreme Court hearing in February.