Title 42 Ended with the Termination of the COVID-19 Public Health Emergency on May 11, 2023

If you are not familiar, Title 42 is a little used statute that allows the U.S. to prevent immigration, even by those seeking asylum, when immigrants present the threat of bringing communicable disease into the U.S. It was invoked ostensibly to slow the spread of COVID-19 in March of 2020. It has been alleged to have been used to “override immigration law that allowed people to ask for asylum after entering illegally.” 

In theory, disabled people were granted exceptions to Title 42, however the Administration never provided answers to questions from the disability community about the exact nature of these exceptions. About 187,000 exceptions were granted although it is not known how many of them were granted on the basis of disability.

In a statement on April 27, Department of Homeland Security Secretary Alejandro Mayorkas stated that  “After May 11th, our court-compelled use of Title 42 will end and we will once again process all migrants under Title 8 of the United States code.”

He further stated that “[unlike] the Title 42 public health authority, the penalty for being removed from the United States under Title 8 through expedited removal and other immigration laws we will be enforcing is not just removal. An individual who is removed is subject to at least a five-year ban on admission to the United States and can face criminal prosecution for any subsequent attempt to cross the border illegally.”

The “Department of Homeland Security (DHS) and the Department of Justice have issued a final rule to incentivize the use of lawful pathways.” The final rule is designed to “discourage irregular migration by: encouraging migrants to use lawful, safe, and orderly processes for entering the United States and other partner nations; imposing conditions on asylum eligibility for those who fail to do so; and supporting the swift return of migrants who do not have valid protection claims.” 

The CBP One app will remain available for individuals with internet connectivity and modern cell phones to “schedule more appointments at ports of entry, consistent with Title 8 processing.” This app which requires an up-to-date phone and internet access, has posed difficulty for migrants to use since it was launched in January of 2023, especially migrants of darker skin tone. Also, some new processing centers will be opened in Columbia and Guatemala so that migrants can be prescreened prior to coming to the border.

There was concern that ending Title 42 would result in a spike of immigration causing the scenes at the border to “turn chaotic as tens of thousands of migrants and asylum seekers appear set to make the dangerous journey…  exacerbating a longstanding humanitarian crisis.” Such chaos could potentially increase death tolls of immigrants including asylum seekers. Although there was a spike in individuals attempting to cross the border in the days immediately prior to Title 42 being rescinded, the post Title 42 spike has not yet materialized.  

Deaths of immigrants attempting to cross the southern border reached a record high of 890 last year.

There is no specific information or guidance for immigrants with disabilities. Given the history of disabled persons attempting to cross the southern boarder, it is clear that disabled immigrants will encounter even more barriers to immigration and higher rates of injury than their nondisabled peers.

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