What is Title 42 and What Does it Have to Do with Asylum?

“Title 42” has been in the news a lot these days. Images of migrants and those seeking asylum at the U.S. border, often families with young children, populate our TV screens and social media feeds. What is Title 42 and what does it have to do with people seeking asylum?

Title 42 is part of the Public Health Service Act of 1944. Its purpose is to help prevent the spread of communicable diseases in the U.S. Responding to a cholera epidemic, Congress passed a law in 1893 that later became Title 42. That law gave the President authority to exclude people from certain countries during public health emergencies. According to Title 42, whenever the U.S. Director of the CDC (Centers for Disease Control) determines there is a communicable disease in another country, health officials have the authority, with the approval of the President, to prohibit “the introduction of persons and property from such countries or places” for as long as health officials determine is necessary. That authority was held by the U.S. Surgeon General until it was transferred to the CDC Director in 1966.

Prior to 2020, Title 42 had never been used and the law that became Title 42 had only been used once — in 1929 to keep ships from China and the Philippines from entering U.S. ports during a meningitis outbreak. 

When people discuss Title 42 today, they are usually talking about how the law has been used since the Covid-19 pandemic emerged. In March 2020, the Trump administration activated Title 42. Title 42 gives the U.S. Border Patrol the power to turn away people who are seeking asylum. (See below to learn more about asylum).  

The Trump administration said they were using Title 42 to help stop the spread of Covid-19 in immigrant detention centers, where many migrants and asylum seekers are placed when they arrive at the U.S.-Mexico border. However, many believe that Title 42 was used to keep asylum seekers out of the country, to end asylum, and was part of the Trump administration’s overall anti-immigrant agenda and policies. It was reported by the New York Times that Stephen Miller, a senior advisor to former President Trump who was instrumental in many of these anti-immigrant policies, pushed the idea of using Title 42 at the U.S.-Mexico border as early as 2018—two years before Covid-19 emerged as a communicable disease. 

Title 42 being used in this way has been criticized by many civil and human rights organizations. They say that the policy uses public health as a pretext (or excuse) to stop migrants from seeking protection and safety in the U.S., in violation of U.S. and international immigration law.

Asylum is a protection given by a country to someone who has left another country because of a “well-founded fear of persecution.” Persecution means that a person is continually treated in a cruel or harsh way because of their race, religion, political ideas, or some other aspect of identity. Asylum allows that person to stay in the new country legally. To explain it in more simple terms: There are people all over the world who have to leave their country because it is unsafe or dangerous (because of war, violence, being mistreated, natural disaster, etc.). They are called “refugees.” “Asylum” is a kind of protection that lets someone stay in a country instead of being “deported” (sent back) to a country where they are afraid for their safety.  

Asylum in the U.S. has historically been granted to people from other countries already in the U.S. or at the border who meet the international law definition of a “refugee.” The United Nations 1951 Convention and 1967 Protocol define a refugee as a person who is unable or unwilling to return to their home country, and cannot obtain protection in that country, due to past persecution or a legitimate fear of being persecuted in the future “on account of race, religion, nationality, membership in a particular social group, or political opinion.” Congress incorporated this definition into U.S. immigration law in the Refugee Act of 1980.  

In terms of public opinion about those seeking asylum, in a December 2022 poll a majority of Americans said that the U.S. should continue to offer asylum to people who arrive at the border if they are found to be fleeing persecution. Fifty-five percent said the U.S. should continue to offer asylum to them and 23% said the U.S. should not.   

Over the past several years, those seeking asylum at the U.S. border include families who have been fleeing violence, threats and persecution in Guatemala, Honduras, El Salvador, Haiti, Venezuela, Cuba, Nicaragua, and other countries in crisis. They are in urgent need of safety, assistance and protection. According to the International Rescue Committee (IRC): 

“Gang violence is rampant in the region [Central America]. Women and girls are specific targets, with violence leveraged as a method to control families with threats, punishments and extortion. It is considered one of the most dangerous regions in the world for women and members of the LGBTQI+ community.” 

U.S. law clearly grants asylum seekers the right to apply for asylum. However, since Title 42 was invoked in March 2020, U.S. border agents have turned away those seeking asylum at the U.S.-Mexico border more than two million times, including families with young children. This situation has forced people to go back to dangerous conditions in Mexico or returned them to the countries they fled, putting their lives at risk. The policy has caused disproportionate harm to Black, Indigenous, and LGBTQ+ asylum seekers.  

The Biden administration has condemned Title 42 and said that it plans to stop using it. However, while various courts have been deciding whether to allow the use of Title 42 to end, the administration has continued to rely on and even expand it. 

When President Biden first took office in January 2021, his administration left Title 42 in place and even defended it in court. Eventually, in April 2022, the Biden administration announced that it would suspend the order, but a federal judge in Louisiana stopped that from happening. The administration said that it would appeal the judge’s order (ask a higher court to say that the judge was wrong). In the meantime, though, the administration actually expanded the use of Title 42, pairing it with narrow paths to legal entry for only a small group of people who were seeking safety.  

In a separate case, called Arizona v. Mayorkas, six families challenged Title 42 in federal court in Washington, D.C. These families crossed the U.S.-Mexico border without permission and then asked for asylum, both for themselves but also as a “class action” (asking for other families who are in the same situation). In November 2022, a federal judge in D.C. ordered the end of Title 42. Nineteen Republican-led states asked the Supreme Court for permission to weigh in on the case, arguing that the Biden administration would not defend Title 42 strongly enough. The Supreme Court kept Title 42 in place until it could decide whether the states are allowed to weigh in. After the Court said that, the Biden administration expanded the use of Title 42 again, pairing it with narrow ways to legal entry for only a small group of people seeking safety. 

Age 

12 and up

Questions to Start the Conversation 

• What did you learn about Title 42 that you didn’t know before?  

• What do you think should happen next with Title 42, and why do you think that? 

• What have you heard from others or the media about Title 42? How can you determine how accurate this information is? 

• What did you learn about people seeking asylum that you didn’t know before? 

• What are your thoughts and feelings about those seeking asylum? 

Questions to Dig Deeper

(See the Additional Resources section for articles and information that address these questions.)  

• Why do you think Title 42 was invoked in 2020? What is the difference between the reason Title 42 was initially created in 1944 and how it is being used today?  
• How can we educate others about Title 42 about what is happening with those seeking asylum? 
• What can we do to help and support those who are seeking asylum from countries that are unsafe? 

Ideas for Taking Action

Ask: What can we do to help?  What individual and group actions can help make a difference?  

• Educate yourself and others about Title 42 and the asylum-seeking process. Share information and your thoughts and insights on social media or by helping to organize an educational event or forum in your school or community. 
• Reach out to your member of Congress, Senators or President Biden to express your thoughts and opinions about Title 42, asylum or immigration issues in general. 
• Learn about and support organizations that are helping to provide food, clothing and other assistance needed by those seeking asylum at the border.