What is Title 42? Amid backlash, Biden administration defends use of Trump-era order to expel migrants

Groups challenging the use of the order argue that it violates U.S. asylum law.

President Joe Biden vowed to implement a more humane approach to immigration than his predecessor, but now the Biden administration is facing backlash over its use of a Trump-era order to rapidly expel thousands of migrants, mostly Haitian nationals, without giving them a chance to apply for asylum within the United States.

The process is known as Title 42, a reference to part of a U.S. public health code, and according to advocates challenging the administration in court, its use violates U.S. asylum laws.

Despite a chorus of criticism from advocates and Democratic lawmakers over the handling of the crisis at the border in Del Rio, Texas, the administration is defending the use of Title 42 in court.

After more than a week of growing controversy, immigration authorities in Del Rio, Texas, on Friday finished clearing out an encampment of mostly Haitian migrants that at one point expanded to about 15,000 people.

So far, more than a dozen flights have taken about 2,000 people back to Haiti, according to the Department of Homeland Security. About 17,400 have been moved from the camp for processing or to initiate removal proceedings where they will have the chance to claim asylum. About 8,000 at the camp returned to Mexico, according to DHS.

What is Title 42?

Title 42 is a clause of the 1944 Public Health Services Law that "allows the government to prevent the introduction of individuals during certain public health emergencies," said Olga Byrne, the immigration director at the International Rescue Committee.

Rarely used over the past few decades, the Trump administration used an interpretation of Title 42 to issue a public health order during the COVID-19 pandemic to rapidly expel migrants at the border, citing concerns over the spread of the virus, without giving them a chance to apply for asylum, Byrne said.

"U.S. law says that any person in the United States or at the border with the United States has a right to seek asylum," said Byrne.

"The legal issue at hand [with the use of Title 42] is that there's nothing in the law that allows the government to expel [migrants] without any due process," she added.

Between October 2020 and August 2021, 938,045 migrants were expelled under Title 42, according to U.S. Customs and Border Protection data.

Who is being deported under Title 42?

Nearly two week ago, thousands of migrants, mostly Haitian nationals, began arriving at the Texas-Mexico border in Del Rio. At one point, there were more than 14,000 migrants, with thousands sheltering under an international bridge.

The influx of migrants from Haiti came after civil unrest erupted this summer following the assassination of Haitian President Jovenal Moïse as well as a 7.2 magnitude earthquake that devastated the Caribbean nation.

Many Haitian migrants have also been in South America for about a decade ever since the 2010 earthquake caused massive damage and social and economic instability throughout Haiti considered the poorest country in the Western Hemisphere.

"We are definitely seeing a high number of Black immigrants, Haitian immigrants in particular, immigrants from the African continent who are not even given the tiniest opportunity to explain their experiences and request asylum," said Breanne Palmer, the policy and community advocacy counsel at the UndocuBlack Network, an advocacy group for undocumented Black individuals.

When asked last Friday what is being done to remediate the situation in Del Rio and what has caused the recent increase of migrants at that port of entry, Department of Homeland Security Secretary Alejandro Mayorkas said DHS would continue to use Title 42 to its fullest extent to help expel individuals arriving at the border.

"…we have the authority to expel individuals under the laws that Centers for Disease control have," Mayorkas told ABC News. "It is their public health authority under Title 42 and that is what we will bring to bear to address the situation in Del Rio, Texas."

Byrne said that the Biden administration has chosen to deport Haitian migrants without screening them for coronavirus, despite the fact that COVID-19 testing is widely available as tourists and travelers have continued to flow into the U.S. through the U.S.-Mexico border.

"Title 42 is the most efficient tool at the government's disposal for quick expulsions to quickly get people out of the U.S. without due process," Byrne said.

The Biden administration has exempted unaccompanied minors from deportation under Title 42 but is defending in court its use of the public health order to deport families, arguing that lifting the public health order would lead to overcrowding at DHS facilities, and that an influx of migrants along with the delta variant surge, poses a public health risk.

The court battle and what's next

The American Civil Liberties Union, joined by a group of civil rights organizations, filed a preliminary injunction in court, challenging the expulsion of families under the use of Title 42.

"Anybody who arrives at our border is supposed to be able to seek asylum if they claim a fear of persecution," said ACLU attorney Lee Gelernt, the lead lawyer in the case.

"The Haitian situation is a dramatic and horrific illustration of the harms caused by the Title 42 policy," he added. "... families are literally being pushed back into the arms of persecutors and cartels, without any hearing."

On Sept. 16, a federal judge granted the injunction, blocking the use of Title 42 to expel families.

"The Title 42 Process is likely unlawful," judge Emmitt Sullivan wrote in the ruling, referencing protections for asylum seekers in place under current U.S. immigration laws.

But the judge's order, which was appealed by the Biden administration, does not apply to single adults and will not take effect for 14 days or Thursday, Sept. 30.

And according to Byrne, because the Biden administration has already applied for a stay of the injunction pending appeal, it is likely that the order will not go into effect on Thursday.

In the meantime, the expulsion of migrants has continued.

"The government is using those two weeks now, rather than to organize itself at the border ... to quickly expel as many Haitians as it can," Gelernt said.

ABC News' Luke Barr contributed to this report.

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