What is Title 42?
Section 265 of Title 42 is part of the Public Health Service Act of 1944 aimed at preventing the spread of communicable diseases.
What does Title 42 do?
This law allows the Director of the Centers for Disease Control and Prevention (CDC), with approval of the President, to decide that non-citizens can be stopped from entering the US because of the existence of contagious disease in another country. Title 42 allows border authorities to expel migrants from the U.S. before they can make an asylum claim.
What does Title 42 mean to migrants with disabilities and migrants with access and functional needs?
It is more dangerous for disabled migrants not to be able to file asylum claims than for people without disabilities. This includes health and safety risks in traveling back to other countries, usually Mexico.
According to Qudsiya Naqui, “... disabled immigrants are routinely shut out of participation in the immigration process itself. They are denied accommodations like hearing aids in immigration court proceedings, and women in detention have undergone forced sterilization as recently as 2020. The immigration detention system has also exacerbated, and sometimes caused violence, medical neglect, trauma, and mental health disabilities.”
Title 42 Exception
Physical or mental disability can be grounds for exception to a Title 42 expulsion. What is meant by disability and how disability is determined is unclear. In January of 2023, the Biden Administration announced an expansion of the app “CBP One.” Eligible immigrants will be able to use the app to schedule appointments at border entry points. Once there they would find out if they can be allowed into the U.S. under humanitarian exceptions, which allow disabled and other “vulnerable” people to be in the U.S. while asylum status is being determined.
Currently the term used to identify if someone has a disability is “invalidez” which translates to invalidity as in invalid. The Partnership wrote to the U.S. Department of Homeland Security Customs and Border Protection (DHS CBP) to address this ableist term and is waiting on a response.
ADA and Section 504 Obligations Reminder:
When a government or other organization has obligations under ADA and Section 504 of the Rehabilitation Act not to discriminate against disabled people, it must not discriminate against disabled migrants.
How is Title 42 being used now?
It started to be used again in March 2020 by the Trump administration. The reason given for this was to slow down the spread of COVID-19. In April 2022, the CDC determined that stopping people from coming into the U.S. via Title 42 was not necessary anymore to stop the spread of COVID-19.
Title 42 continues to be used under the Biden administration because a number of governors filed a lawsuit to keep it in place. On December 27, 2022, the Supreme Court temporarily blocked removing Title 42. It will hold another hearing in February or March of 2023.
Title 42 should be revoked on May 11, 2023, when the public health emergency is lifted; however, the Administration has not provided clarity.
Immigrants with disabilities have rights as they enter the country. Our current immigration system, including Title 42, obfuscates these rights. The Partnership wrote to the U.S. Department of Homeland Security Office of Civil Rights and Civil Liberties (DHS CRCL) to clarify this policy; you can find the letter here.
Title 42 is a xenophobic and harmful policy that needs to end. We need a transparent and equitable immigration system that prioritizes human life.