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Title 42 is a public health policy intended to prevent the introduction of a contagious disease into the U.S. through immigration.
U.S. immigration law has been used as a tool for decades to manage the flow of immigrants into the country.
Physical barriers, surveillance technology, expedited removals and legal consequences for repeat border crossers are also options available to Border Patrol to control the flow of people across the border.
If a public health policy that in effect limits immigration is rescinded, U.S. Border Patrol will have no tools left to protect the border, claimed Nevada’s Republican candidate for U.S. Senate, Adam Laxalt.
Title 42 is a section of federal law that gives the Centers for Disease Control and Prevention the authority to deny entry to people coming from countries where there is an outbreak of an infectious disease. Immigration officials have enforced that law since the CDC invoked it in March 2020.
This strategy that began as a way to slow the spread of COVID-19 has morphed into a political debate about immigration enforcement.
Laxalt spotlighted the policy in an attack against Sen. Catherine Cortez Masto, D-Nev., whom he’s trying to unseat in the November midterm election.
"Cortez Masto voted to block an amendment that would keep Title 42 in place, the last tool Border Patrol has to stop the overwhelming flood of illegal immigrants pouring into our country," Laxalt said in an Aug. 8 campaign statement.
Below is my statement in response to Senator @CortezMasto casting the deciding vote to pass a partisan $700 billion package that will raise taxes on businesses and working Nevada families. ⁰— Adam Paul Laxalt (@AdamLaxalt) August 8, 2022
This is quite literally the last thing Nevadans need in the midst of a recession. pic.twitter.com/3I2K5Mv5NT
Laxalt was talking about an amendment to the Inflation Reduction Act offered by Sen. James Lankford, R-Okla. That amendment sought to keep Title 42 in place for 120 days after the COVID-19 public health emergency ends. (The CDC has not announced an end date for the emergency declaration.) The amendment did not pass and was left out of the larger bill.
The Inflation Reduction Act, a bill on climate change, health care and corporate taxation, passed the House and Senate with only Democratic support. President Joe Biden signed it into law on Aug. 16.
Cortez Masto voted against Lankford’s amendment. But the crux of Laxalt’s claim — that Title 42 is "the last tool" Border Patrol has to stop illegal immigration — is wrong.
Under federal law, Title 42 goes into effect if the U.S. surgeon general believes there is serious danger of a communicable disease being introduced through immigration.
In March 2020, the CDC invoked the policy, prohibiting immigrants from entering the United States through land ports of entry at the borders with Canada and Mexico.
Typically, when Border Patrol agents encounter immigrants at the southwest border, they question them and decide whether they have a reasonable fear of returning to their home country. If they do, they can seek asylum in the U.S. People allowed to apply for asylum are either detained or released while they await their court proceedings.
However, immigrants processed under the public health policy are not screened or allowed to seek asylum. Instead, they are immediately sent back to the country from which they came.
Seeking asylum is a legally recognized process under U.S. immigration law, even if a person arrives without authorization.
Title 42, a public health policy, has in effect been used to deter entry and to prevent immigrants from seeking asylum, according to Rick Su, immigration law professor at the University of North Carolina at Chapel Hill.
But that doesn’t mean it’s an immigration enforcement tool, or the last option available to Border Patrol agents to stop illegal entries.
Physical barriers like fences and surveillance technology such as drones are also in place to help mitigate illegal immigration. The 1952 Immigration and Nationality Act outlines enforcement methods that Border Patrol agents can use, said Su.
Su referenced expedited removal, which allows a Border Patrol agent to send immigrants back to the country they came from without them having a court hearing.
"We already can remove individuals who are illegally immigrating," without relying on Title 42, Su said. And deportations that are not under Title 42 carry more consequences.
Immigrants who are deported are not legally allowed to return to the United States for the next five years. Immigrants apprehended under immigration law can also face legal consequences such as fines or misdemeanor charges. People who are caught repeatedly crossing the border illegally can also be subject to felony charges. These penalties don’t apply to people who are returned under Title 42.
Since the 1990s, the U.S. has pursued a "prevention through deterrence" policy, said Susan Akram, a Boston University law professor. This means the prospect for immigrants of crossing "hostile terrain, primarily the Sonoran Desert, where they have a high rate of disappearing or perishing," would discourage others from trying to cross the border illegally, Akram said.
The U.S. historically has also entered into agreements with Mexico to provide financial aid in exchange for managing the flow of migrants, she said.
"These are just a few of the many and complex ways embedded in U.S. law and policy that prevent immigrants from entering the U.S.," Akram said.
Laxalt claimed that Title 42 is "the last tool Border Patrol has to stop the overwhelming flood of illegal immigrants pouring into our country."
That is inaccurate. Title 42 is not an immigration enforcement tool, despite it in effect limiting entries into the United States during the pandemic.
Immigration law had been codified and enforced by Border Patrol agents for decades before the public health policy was invoked in March 2020.
Expedited removals, physical barriers and legal consequences for repeated crossers remain available to prevent illegal immigration into the United States.
We rate this claim False.
Phone interview with Rick Su, professor of law at the University of North Carolina at Chapel Hill, Aug. 26, 2022
Email exchange with Susan Akram, clinical professor of law at Boston University, Aug. 25, 2022
U.S. Code, Suspension of entries and imports from designated places to prevent spread of communicable diseases, accessed Aug. 30, 2022
Centers for Disease Control and Prevention, Order Suspending Introduction of Certain Persons from Countries Where a Communicable Disease Exists, Oct. 13, 2020
PolitiFact, The Democrats’ big IRA bill fulfills some Biden promises, leaves others behind, Aug. 12, 2022
U.S. Congress, S.Amdt.5384 to S.Amdt.5194, accessed Aug. 30, 2022
Centers for Disease Control and Prevention, Order suspending introduction of certain persons from countries where a communicable disease exists, March 20, 2020
Bipartisan Policy Center, What happens at the border After Title 42?, May 26, 2022
Politico, Biden administration renews Title 42 order, as ACLU fights back, Aug. 2, 2021
CBS, What is Title 42, the COVID border policy used to expel migrants?, Aug. 16, 2022
Texas Tribune, Judge blocks Biden administration from lifting public health order used to quickly expel migrants, May 20, 2022
U.S. Citizenship and Immigration Services, Immigration and Nationality Act, accessed Aug. 30, 2022
Boston University, A comparative perspective of safe third and first country of asylum policies in the United Kingdom and North America: Legal norms, principles and lessons learned, accessed Aug. 30, 2022
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