The Title 42 immigration policy was the federal government’s use of a 1944 public health statute, 42 U.S.C. § 265, to rapidly expel migrants at the U.S. border during the COVID-19 pandemic without the hearings, asylum screenings, or formal removal orders that normally apply. It was in effect from March 20, 2020 through May 11, 2023, and border agents carried out roughly 2.96 million expulsions under it during that period.1Office of Homeland Security Statistics. Immigration Enforcement and Legal Processes Monthly Tables The policy has ended, but the statute it relied on has not been repealed and could be invoked again.
What Title 42 Actually Was
“Title 42” is shorthand for a provision of federal public health law. Section 265 of Title 42 of the U.S. Code lets the government suspend the entry of people or property from any foreign country where a communicable disease exists, if that disease poses a “serious danger” of spreading into the United States.2Office of the Law Revision Counsel. 42 USC 265 – Suspension of Entries and Imports From Designated Places to Prevent Spread of Communicable Diseases The authority sits with the CDC Director, and the statute lets an order last “for such period of time as he may deem necessary.” There is no sunset clause and no requirement that Congress reauthorize it.
On March 20, 2020, the CDC issued an order under this authority suspending the entry of certain noncitizens arriving from Canada or Mexico. It applied to people without valid travel documents, people whose entry was otherwise unlawful, and people caught crossing between official ports of entry. The stated reason was that processing these individuals in crowded border facilities would accelerate the spread of COVID-19.
The implementing regulation, 42 C.F.R. § 71.40, defined the power broadly. “Prohibiting the introduction of persons” was read to include physically stopping movement into the country, restricting entry, and expelling people who had already crossed.3eCFR. 42 CFR 71.40 – Suspension of the Right to Introduce and Prohibition of the Introduction of Persons Into the United States From Designated Foreign Countries or Places for Public Health Purposes Both the Trump and Biden administrations renewed and modified the order over the next three years.
How It Differed From Normal Immigration Processing
The reason Title 42 was so consequential is that it ran on an entirely separate track from standard immigration law under Title 8 of the U.S. Code.
Under Title 8, someone who crosses without authorization is put into removal proceedings. That process includes screening interviews, the ability to request asylum before an immigration judge, and a formal deportation order at the end. Federal law provides that any person physically present in the United States may apply for asylum, regardless of how they arrived.4Office of the Law Revision Counsel. 8 USC 1158 – Asylum The full process can take months or years.
Title 42 bypassed all of that. Border agents took people into temporary custody, processed them administratively, and expelled them, often within hours. No immigration judge, no credible fear interview, no chance to file an asylum application.
The consequences for the person expelled were different too. A formal deportation under Title 8 creates a permanent record and triggers a bar on reentering the United States for at least five years, with longer bars for repeat offenders. A Title 42 expulsion carried no such immigration penalty, which meant there was no escalating consequence for being expelled multiple times.
Who Was Not Subject to Title 42
Several categories of people fell outside the expulsion process.
- Lawful permanent residents and valid visa holders. People with green cards, approved visas, or border crossing cards continued to be processed under normal immigration procedures.
- Unaccompanied children. Federal law, specifically the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, requires that children arriving without a parent or legal guardian be transferred to the Department of Health and Human Services rather than expelled, and the CDC orders carved out an exception for these minors.5Office of the Law Revision Counsel. 8 USC 1232 – Enhancing Efforts to Combat the Trafficking of Children
- Case-by-case humanitarian and law enforcement exceptions, at the discretion of border agents.
A separate protection applied to people who feared torture in the country they would be sent back to. U.S. policy, rooted in a note following 8 U.S.C. § 1231, prohibits the involuntary return of any person to a country where there are “substantial grounds” for believing they would face torture, implementing Article 3 of the U.N. Convention Against Torture.6Office of the Law Revision Counsel. 8 USC 1231 – Detention and Removal of Aliens Ordered Removed The standard is high: the person must show it is “more likely than not” that they would be tortured if returned, tougher than the “significant possibility” test used in ordinary credible fear screenings.7eCFR. 8 CFR 208.16 – Withholding of Removal and Convention Against Torture In practice, the speed of Title 42 processing and limited access to counsel meant many people with potential claims never had the chance to raise them.
How the Courts Handled It
Title 42 faced sustained litigation, and courts reached conflicting conclusions.
The most significant ruling came in March 2022, when the D.C. Circuit decided Huisha-Huisha v. Mayorkas. The court upheld the government’s basic power to expel people under a valid 42 U.S.C. § 265 order but drew a line: the government could not expel people to countries where they would face persecution or torture.8Justia Law. Huisha-Huisha v. Mayorkas, No. 21-5200 (D.C. Cir. 2022) The § 265 authority was broad, the court reasoned, but it did not override the obligation not to return people to danger.
In November 2022, a federal district court went further and declared the Title 42 order itself unlawful, ordering it to end. Several states that wanted the policy to continue intervened, and in December 2022, the Supreme Court stayed the district court’s order while it considered whether those states had standing. The case became moot when the Biden administration ended the COVID public health emergency in May 2023, terminating the legal basis for the orders.
When and How It Ended
Title 42 ended on May 11, 2023, when the Secretary of Health and Human Services terminated the COVID-19 public health emergency. Border processing reverted to Title 8: formal removal proceedings, immigration court hearings, and the right to request asylum.
The Biden administration paired that transition with a new regulation, often called the “Circumvention of Lawful Pathways” rule, which raised the asylum screening standard for most people who crossed between ports of entry without first applying for protection in a country they had traveled through. Critics described it as a transit ban that reproduced some of Title 42’s effects under a different legal authority.
Could Title 42 Come Back
The statute is still on the books. 42 U.S.C. § 265 has not been repealed or amended, and a future CDC Director could invoke it again if a new communicable disease threat emerges.
The Trump administration, which took office in January 2025, did not reinvoke Title 42. Instead, it issued Presidential Proclamation 10888 on its first day, relying on a separate authority, Section 212(f) of the Immigration and Nationality Act, which lets the president suspend entry of any class of noncitizens whose entry would be “detrimental to the interests of the United States.” The proclamation declared that people crossing the southern border were “engaged in the invasion” and restricted their access to asylum until the president determined the “invasion” had ceased.9GovInfo. Presidential Proclamation 10888 – Securing the Borders of the United States
On April 24, 2026, the D.C. Circuit struck down that approach. In RAICES v. Noem, the court held that Section 212(f) does not give the president the power to override the asylum procedures Congress itself enacted, writing that it could not “license the Executive to do by Proclamation and informal guidance what Congress has determined must be done, if it can be done at all, by rule.”10U.S. Court of Appeals for the D.C. Circuit. RAICES v. Noem, No. 25-5243 Whether that ruling is appealed to the Supreme Court, and how it affects processing at the border, was unresolved as of mid-2026.
The COVID era showed both the reach of 42 U.S.C. § 265 and its limits. The provision can reshape border policy quickly, but courts will examine whether the public health justification is genuine and whether protections against returning people to torture or persecution are being honored.