Before COVID-19 was declared to be a public health emergency, U.S. Customs and Border Protection (CBP) complied with the immigration law provisions in Title 8 of the U.S. Code when it processed migrants who had made an illegal crossing at a land border. When COVID-19 was classified as a public health emergency, the CDC used its authority under the Public Health Service Act (Title 42 of the U.S. Code)to order CBP to expel illegal crossers without Title 8 processing.

The order applies primarily to migrants who make illegal crossings between ports of entry along the border with Mexico. Very few illegal crossers are encountered at the northern land border.

Migrants who are not expelled are subjected to immigration processing at crowded CBP processing centers where they face an increased likelihood that they will contract COVID-19 if they don’t already have it — or spread it to others if they do.

The Title 42 order requires CBP to process illegal land border crossers promptly. This typically takes 15 minutes in an outdoor setting, which is followed by expelling them at the closest port of entry.

Processing under the Title 8 immigration provisions increases the amount of time spent in CBP custody to an average of 50 hours for adults and 62 hours for families.

Is the Title 42 order lawful?

Asylum-seeking migrants brought a class action against the Department of Homeland Security (DHS) in a U.S. District Court claiming that the order violates their right to apply for asylum. In a preliminary decision, the court granted a temporary injunction requiring DHS to suspend enforcement of the Title 42 order pending the outcome of the suit.

DHS appealed to a U.S. Court of Appeals and made an emergency motion to suspend the injunction pending the outcome of the appeal. The appeals courtgranted the motion.

According to the judge, illegal crossers aren’t apprehended until they are already in the United States; therefore, the lawfulness of the CDC’s order depends on whether section 265 of the Public Health Service Act authorizes the expulsion of illegal crossers who are already in the United States — despite the fact that it does not mention the word “expel” or use any synonyms of that word.

The pertinent part of section 265 reads as follows;

“Whenever the Surgeon General determines that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States, and that this danger is so increased by the introduction of persons or property from such country that a suspension of the right to introduce such persons … is required in the interest of the public health, the Surgeon General … shall have the power to prohibit … the introduction of persons … from such countries … he shall designate in order to avert such danger.” [This authority has been delegated to the CDC.]


Published originally on the Hill.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at