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What is happening to Title 42?

On Behalf of | Dec 27, 2022 | US Immigration Law

A portion of the U.S. Code has been receiving a lot of attention lately as would-be immigrants continue to pile up on the country’s southern border.

The section at issue, known as Title 42, is actually not a statute but a regulation adopted by the Secretary of Homeland Security as an anti-immigration measure put in place by the Trump administration.

The Biden administration has announced its intention to repeal Title 42, but the repeal hasn’t happened yet. Several states have commenced a lawsuit to prevent the Biden administration from acting on its promise to repeal “Title 42.”

What is Title 42?

The law at issue is Section 71.40 of Title 42 of the Code of Federal Regulations.

“Title” is the term used to refer to large sections of the U.S. Code that deal with similar or related issues. Title 42 includes provisions related to public health, quarantines and foreign quarantines.

The Code of Federal Regulations is the compilation of regulations adopted by the agencies of the federal government, and they are numbered by titles that are identical to the titles in the U.S. Code.

In this case, the regulation at issue is 42 CFR §71.40, a provision that allows the Secretary of Homeland Security to prohibit immigration for “public health purposes.”

During the Trump administration, the Secretary of Homeland Security issued an order pursuant to 42 §71.40 drastically limiting immigration. The reference to this order by the name “Title 42” is merely shorthand for the complete legal name, 42 CFR §71.40.

The recent history of Title 42

President Biden promised to repeal Title 42 by December 21, 2022. After the Republican states commenced their lawsuit, a federal judge issued an order essentially dismissing the lawsuit on the ground that it had not been filed in a timely manner.

The states sought an expedited appeal to the U.S. Supreme Court, and Chief Justice John Roberts issued a stay of the lower court order that allowed Title 42 to remain in effect. Justice Roberts did not give an expiration date for his order, and no one knows when it may expire.

Meanwhile, thousands of potential immigrants are gathering on the Rio Grande River while they await a resolution.

Who is affected by Title 42?

Many individuals who are related to someone attempting to enter the country in Texas may have their hopes frustrated by the current legal deadlock. Thus, Chief Justice Roberts’ order reaches far beyond the Rio Grande Valley.

Immigration to the United States can be an extremely complicated matter. Attorneys help people understand their rights and options.

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