As thousands of Haitian migrants have crowded the U.S.-Mexico border in recent weeks, the administration of President Joe Biden has relied on his predecessor’s policy from early in the pandemic to detain and deport them back to their home country. The policy rests on a decades-old public health law known as Title 42. Former President Donald Trump drew criticism for dusting it off in 2020, and Biden is facing the same hard questions now. 

1. What is Title 42?  

It’s a provision included in the 1944 Public Health Service Act to permit federal health officials to ban people and goods from entering the country in the case of a pandemic. The notion had been around in varying forms since 1893 until finally being codified. 

2. When and why was Title 42 invoked? 

In March 2020, during the early days of the Covid-19 pandemic, then-President Donald Trump issued a public health order invoking the law to allow for the rapid expulsion of nearly anyone trying to cross into the U.S. from Mexico or Canada, before they had the opportunity to seek asylum in the U.S. The administration justified the decision arguing it would prevent the spread of Covid-19, specifically at border facilities where the administration worried overcrowding could fuel viral transmission. The order does not apply to U.S. citizens, lawful permanent residents, and their spouses and children, nor does it apply to U.S. military personnel or those who arrive at a port of entry with valid travel documents.

3. Why is it being used again?

Haitian migrants have been arriving at the U.S.-Mexico border for years now, with a noticeable uptick following the assassination of Haitian President Jovenel Moise in July and a major earthquake in August. Most of the Haitians reaching Texas, however, left their country following a 2010 earthquake and went to South America to find jobs in Brazil and Chile, accordng to PolitiFact; when opportunities dried up in those countries, they began trekking north toward Mexico. Department of Homeland Security Secretary Alejandro Mayorkas stated most of the Haitians arriving would be expelled from the area through Title 42 authorities, though he also said he was “horrified” by images of U.S. Border Patrol agents on horseback appearing to brandish whip-like reins at the asylum-seekers. 

4. How many people have been affected?

From Sept. 19 to Sept. 23, 12 U.S. government flights carrying 1,401 Haitian migrants had arrived in Haiti, according to DHS. Another 3,206 Haitians had been moved within the U.S. to face removal proceedings or expulsion through Title 42. 

5. What are critics saying? 

That today’s use of Title 42 is a misapplication of the law and is spurred by immigration concerns, not public-health worries. In August, former CDC officials and other public health experts wrote a letter to the Biden administration condemning its use of Title 42. A federal judge in Washington said in early September that use of Title 42 this way is likely illegal; the Biden administration said it would appeal. 

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