Why Title 42 Expulsions Hold No Legal Merit

The immigration policy of the United States has shifted in the face of the ongoing coronavirus pandemic. Title 42, a rarely-invoked section of the United States Code created in 1944, was revitalized by the Trump and Biden administrations to swiftly expel migrants due to alleged fears of the spread of COVID-19. [1] Despite the policy’s revitalization, however, current legal challenges to Title 42 show that there is no legal basis for such expulsions within its language. In particular, the disproportionate application of the policy at the southern border of the United States serves as evidence of racist motivations behind Title 42 expulsions.  

In order to understand the grave racialized implications of Title 42 on the nation’s immigration policy, it is important to deconstruct what the policy actually entails. Title 42 is a section within the United States Code (U.S.C), the nation’s codified set of federal statutes, which broadly encompasses “public health and welfare.” [2] Within this section, 42 U.S.C. §265 grants the Center for Disease Control and Prevention (CDC) the ability to “[s]uspen[d] entries and imports from designated places to prevent spread of communicable diseases.” [3] The specific powers delegated to the CDC in §265 emphasizes the need—in the U.S. government’s eyes — to “avert ... danger … for such period of time as [it] deems necessary for such purpose.” [4] Under Title 42, individuals seeking to enter the United States are expelled without the chance to present their case to an immigration judge.

Various legal challenges to Title 42 expulsions have been presented in the U.S. court system. The first case to challenge the constitutionality of Title 42 expulsions in relation to the coronavirus pandemic was P.J.E.S. v. Mayorkas (2021). Plaintiff P.J.E.S., an unaccompanied minor who entered the United States in August 2020, petitioned the D.C. Federal Circuit Court to stay Title 42 expulsions for minors at the border. [5] In its analysis, the Court pointed out that Title 42 does not include any references to expulsion; the Court even proffered the Merriam-Webster dictionary definition of expulsion and its synonyms in order to convey the inexistence of legal language that justifies expelling minors at the southern border. Furthermore, the Court found that the CDC does not have the legal capacity to expel migrants on the basis of public health concerns, stating that the power to regulate legal entry into the United States belongs solely to  Congress. 

The Court held in P.J.E.S. v. Mayorkas that unaccompanied minors were exempt from expulsion under Title 42, granting the plaintiff's motion for preliminary injunction, which is a temporary order that prevents the respondent from a specific act of conduct until a further decision is made. [6] As a result of the P.J.E.S. ruling, Title 42 expulsions against unaccompanied minors at the border immediately ceased. Legal challenges to Title 42 expulsions indicate the lack of legal language justifying such expulsions on the basis of public health concerns. In fact, the Court granting P.J.E.S.’s motion for preliminary injunction—accepting their legal challenge as legitimate—is indicative of such. If there is no language permitting expulsions on the basis of public health concerns within Title 42 itself, then such expulsions, which rely solely on Title 42, must hold no legal merit. 

The most recent legal challenge to Title 42 is the case of Huisha-Huisha v. Mayorkas (2021). Petitioner Huisha-Huisha sought to obtain a preliminary injunction to halt Title 42 expulsions generally; the ruling in P.J.E.S. exclusively referred to expulsion cases surrounding unaccompanied minors. [7] In analyzing Huisha-Huisha’s motion for preliminary injunction, the D.C. District Court—in a manner similar to the D.C. Federal Circuit Court in P.J.E.S.—began by first deconstructing the language within Title 42. Similar to the Federal Circuit Court’s ruling in P.J.E.S., the D.C. District Court found the language within Title 42 to be “plain,” as it “evinces no intention to grant the Executive the authority to expel or remove persons from the United States.” [8] The Court found that none of the verbiage within 42 U.S.C §265 grants the CDC the power to expel immigrants at the southern border on the basis of broad public health concerns, such as the spread of disease. The respondent, however, argued that statutory interpretation must be applied. In layman’s terms, they argued the Court should impart a justification for expulsion by reading between the lines of 42 U.S.C §265, despite the lack of explicit language that would compel them to do so. The Court rejected this argument, as “absent provision[s] cannot be supplied by the courts.” [9] Taking into consideration the lack of precise language that justified the executive branch’s expulsion policies, the Court had ample reason to reject this statutory interpretation argument. Indeed, the respondent’s request for the Court to read in between the lines and arbitrarily create a legal justification for Title 42 expulsions conveys that there is no legal basis for such expulsions—a fact the respondent also recognized in their own argumentation strategy. In a similar vein to the Federal Circuit court’s legal analysis in P.J.E.S., the District Court granted petitioner Huisha-Huisha’s motion for preliminary injunction. 

It is also necessary to take a closer look into why Title 42 has been utilized in this context. Throughout the ongoing pandemic, under the guise of a legitimate fear of communicable disease spread, Title 42 has been continuously invoked to swiftly deport immigrants—predominantly from the southern border—denying them the opportunity to declare asylum. [10] In fact, internal enforcement statistics published by U.S. Customs and Border Protection (CBP) report that in the month of September 2021 alone, the U.S. Border Patrol expelled 100,558 migrants at the southern border using Title 42. [11] However, during that same month, only 58 migrants at the northern border were apprehended and expelled through Title 42. [12] The large disparity in expulsion rates strongly suggests that the CBP acted on racist motivations, especially considering that the southern border is a common point of entry for Latinx immigrants, while the northern border is not. 

Furthermore, between October 2020 and September 2021, the CBP invoked Title 42 to expel a total of 1,040,516 migrants at both the southern and northern border. [13] CBP’s justification for doing so was that they are “prohibiting the entry of certain persons who potentially pose a health risk, either by virtue of being subject to previously announced travel restrictions or because they unlawfully entered the country to bypass health screening measures.” [14] Yet, with the exception of one day in July, Mexico’s COVID-19 case count per million residents has been markedly smaller than that of the United States. [15] The disparity between the reality that migrants do not pose a public health concern migrants pose and the extent to which Title 42 expulsions occurred underscores that CBP’s justifications may be incongruent with their true motives. 

The drastic difference in the number of Title 42 expulsions at the southern U.S. border in comparison to the northern U.S. border indicates that CBP believes the risk of coronavirus spread is increased at the southern border. Such an assumption is a part of an age-old tale of discrimination. The notion that immigrants—particularly immigrants of color—“bring disease” into the United States has historically and repeatedly been cited as a justification for legal discrimination. Legal medicalized nativism in the form of Title 42 expulsions of migrants at the southern border bears striking similarities to long repealed discriminatory acts in American history, such as the Chinese Exclusion Act of 1882. The Chinese Exclusion Act constructed Chinese immigrants as harbingers of disease, indicating that rhetoric portraying immigrants as diseased and unclean is a critical ideological underpin of medicalized nativism. [16]

On February 3rd, 2022, the Biden Administration announced their plan to continue Title 42 expulsions at the border as a result of increased COVID-19 cases due to the Omicron variant. Despite the policy’s continued application, Title 42 continues to hold no legal standing. As seen in the P.J.E.S. and Huisha-Huisha decisions, there is no language within Title 42 that evinces a justification for expulsions on the basis of public health concerns. Furthermore, such language cannot be created out of thin air. As a result, there is no relevant legal merit to the continued application of Title 42 expulsions. Yet, the implications of Title 42’s misapplication are profound; medicalized nativism—revitalized in the form of Title 42 border expulsions—is incredibly deleterious to immigrant communities. Ultimately, it is clear that our legal system must avoid replicating archaic medicalized nativist rhetoric towards immigrant communities under the guise of public health.

Edited by Genevieve Cabadas

Sources:

[1] Nationwide Enforcement Encounters: Title 8 Enforcement Actions and Title 42 Expulsions. U.S. Customs and Border Protection, online at https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics/title-8-and-title-42-statistics (visited November 7, 2021).

 [2] 42 U.S.C. §265 (2011), online at https://www.govinfo.gov/content/pkg/USCODE-2011-title42/html/USCODE-2011-title42-chap6A-subchapII-partG.htm (visited November 7, 2021). 

[3] Id.

[4] Id.

[5] P.J.E.S. v. Mayorkas, (D.C. Cir. 2021).

[6] Ibid.

[7] Huisha-Huisha v. Mayorkas, (D.C. Cir. 2021).

[8] Ibid.

[9] Ibid.

[10] Nationwide Enforcement Encounters.

[11] Id.

[12] Id.

[13] Id.

[14] Id. 

[15] COVID-19 Data Explorer, Our World in Data, online at https://ourworldindata.org/coronavirus-data-explorer (visited November 7, 2021).

[16] Chae Chan Ping v. United States (U.S. 1889).