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Rollback of Title 42 likely to face lawsuits as border crossings rise

Media Contact

Rachel Rhodes

The Biden administration may soon terminate Title 42, the public health law that has restricted immigration at the U.S.-Mexico border for the last two years.

Stephen Yale-Loehr

Professor of immigration law

Stephen Yale-Loehr is a professor of immigration law at Cornell Law School, co-director of an asylum clinic and co-author of a leading 21-volume immigration law series.

Yale-Loehr says: 

“The change to Title 42, which might take effect in late May, would allow migrants entering the United States to seek asylum without immediately being turned back.

“Immigration advocates have long claimed that the continuing use of Title 42 to restrict asylum is illegal. On the other hand, Republicans argue that lifting Title 42 restrictions will encourage more people to try to enter the U.S. illegally. They plan to attack Democrats on this point in their midterm election messaging.

“Conservative states like Texas are likely to challenge a termination of Title 42 in court as encouraging more asylum claims. Federal data show that immigration officials are on track to make more than 200,000 detentions along the Mexico border in March, the highest monthly total since August. A perception that lifting Title 42 will make it easier to apply for asylum could spur more people to attempt to cross the U.S.-Mexico border. If the lawsuits are successful, Title 42 may continue for some time.”

Ian Kysel

Visiting Assistant Professor of Law

Ian Kysel, professor of law at Cornell Law School, is a founder and director of the International Migrants Bill of Rights Initiative.

Kysel says:

“It is good to see the Biden Administration leaking its intention to end its reliance on a public health rationale at Title 42—criticized by experts as baseless — to expel migrants, including those fleeing harm, without the process required by international law. 

“As border crossings likely increase in the coming months, whether seasonally or due to conflict or disaster, the administration should affirm international law principles and commit to protect refugees' access to territory and status determination procedures. And advocates and governments around the world who support progressive, rules-based migration governance regimes should reject any attempt to use Title 42 as precedent. 

“As Europe has kept borders open to more than 4 million refugees in the last month, perhaps it was just no longer tenable for the administration to justify a program that the UN High Commissioner for Refugees criticized for returning refugees to harm.”

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