Here’s What to Know About Title 42 and What Could Happen If It Ends

The Biden Administration plans to appeal a district court’s order to end Title 42, a public health emergency order used to expel asylum-seeking migrants from the U.S., that is currently set to be repealed on Dec. 21. Analysts and border officials predict a surge in border crossings if the policy is lifted.

In a notice filed Wednesday in the District Court for the District of Columbia, the Justice Department said it planned to appeal the decision because of a second Title 42 case currently working its way through a court of appeals in a different district. The Justice Department will request that the D.C. district court hold the appeal until the second case is decided, which could take months. In the meantime, the government would continue to use the controversial public health measure to expel migrants who attempt to make a claim for asylum in the U.S.

The pandemic-era ban, which began under former President Donald Trump in 2020 and has continued under Biden, has been a prominent approach to swiftly expel migrants.

Coupled with the sharp increase in border crossings over the past year, some worry that Biden will respond with other harsh legislation that limits transit at the border and asylum-seekers’ rights, especially as a handful of Republican-led states push to extend Title 42.

“Title 42 was a game changer in terms of the magnitude and the swiftness in which it was applied when people were expelled immediately back to Mexico,” Nicolas Palazzo, a senior attorney at Las Americas, an immigration advocacy group, tells TIME. “There was a lot said about building a wall, and in reality, the most effective wall was Title 42.”

Here’s what to know:

What is the Title 42 border policy?

Title 42 is a federal law enacted as part of the Public Health Service Act of 1944 in order to protect the U.S. from communicable diseases. Theresa Cardinal Brown, managing director of immigration and cross-border policy at the thinktank, Bipartisan Policy Center, explains that the border-specific policy is an order issued by the Center for Disease Control (CDC) to prohibit people’s entry into the country for public health reasons.

“When the CDC believes there’s a public health emergency, they can restrict people who are sick, or ships, boats, railroads or anything else from coming into the United States if they believe that it would further disease in the United States,” Brown tells TIME.

Under Title 42, when border officials deny migrants entry into the country it’s considered expulsion and differs from deportation because the basis for denial stems from public health concerns rather than immigration law.

“It’s interesting because I think most public health experts would tell you that this policy, even from its inception, has done little to prevent the transmission of COVID,” Palazzo says.

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“Individuals are apprehended, they enter and then they’re placed in group settings in Customs and Border Protection (CBP) custody and then expelled back to Mexico or their country of origin. There’s still transmission of COVID in the CBP facilities,” he adds.

Since the policy’s inception, critics have argued that it infringes on asylum-seekers’ rights to access proper legal channels and apply for refuge. In the time since Title 42 was enacted, the policy’s been used to immediately expel more than 73,000 people, according to Syracuse University.

Professionals like Palazzo agree that over the past two-and-a-half years, the ban has impacted Mexicans and other Central American migrants the most, and the majority of individuals expelled at the border are adults traveling alone. Venezuelans were originally exempt from the ban, but an October 2022 agreement changed that.

What has Biden said about Title 42?

The Biden administration has publicly said that it wants to see an end to Title 42 and attempted to strike it down this past spring, but was blocked by a Louisiana District court after Arizona, Missouri, and Louisiana filed suit. The Biden Administration quickly appealed to the Fifth Circuit.

In a separate lawsuit, the D.C. court ruled that the policy was illegal last month, and the Biden administration requested to uphold the policy until December so that it would have ample time to implement new border processing methods.

Now, the Justice Department is requesting that the D.C. court hold off on requiring the Biden Administration to end Title 42 until the Fifth Circuit makes a decision on the lawsuit brought by Arizona, Missouri, and Louisiana—a case that could ultimately end up at the Supreme Court.

“There hasn’t seemed to be a lot of major moves to fundamentally change anything about how asylum is processed at the border,” Brown says. “I think that’s going to create problems for the administration in managing the volume that we’re seeing now, the number of people.”

Since the policy was struck down, Biden hasn’t commented on any new solutions to address flaws in immigration at the southern border, which was a platform he campaigned heavily on to reverse stringent Trump policies.

“It is definitely, at least in the short run, going to result in many, many more people being released into the United States to wait in ever-growing backlogs for their asylum claims to happen in immigration court,” Brown says.

Top Biden aides are discussing strict approaches to curb the record-high daily rates of border crossings. One potential option would be to limit allowing in migrants seeking asylum only to those who were already granted safe harbor by another country they came through, like Mexico.

Senators Kyrsten Sinema, an Arizona Democrat, and Thom Tillis, a North Carolina Republican, have also proposed immigration legislation that would extend Title 42 for at least a year, increase funding to border control by $25 billion, and provide a pathway to citizenship for recipients of Deferred Action for Childhood Arrivals (DACA), according to The Washington Post.

What could happen if Title 42 ended?

The Biden administration predicts that there will be an influx of thousands of migrants attempting to enter the country every day once the Title 42 ban ends. Experts are pessimistic about seeing the progressive immigration reform that Biden campaigned to deliver for asylum-seekers, many of whom escape violence, political instability and economic hardship worsened by the pandemic.

“I think there’s a possibility that Title 42, and it may not be called Title 42, may take on some other name and iteration,” Palazzo says. “We’re talking about an internationally recognized human right to seek asylum so it’s shameful that politics gets mixed into this, but that’s the reality.”

A coalition of 15 states, all but one Republican-led, have brought motions to uphold Title 42 as a border policy. The states, Arizona, Louisiana, Alabama, Alaska, Kansas, Kentucky, Mississippi, Nebraska, Ohio, Oklahoma, South Carolina, Texas, Virginia, West Virginia and Wyoming, argue that even those not touching a border would be harmed by the financial burden of an influx of migrants, in addition to the health risks.

-With reporting by Jasmine Aguilera/Washington