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Title 42 expulsion

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Expulsions under 42 U.S.C. 265 (Title 42 expulsions) from the southwest U.S. border[1]

A Title 42 expulsion is the removal by the U.S. government of a person who had recently been in a country where a communicable disease was present. The extent of authority for contagion-related expulsions is set out by law in 42 U.S.C. § 265. During the COVID-19 pandemic, the Centers for Disease Control and Prevention (CDC) under the Trump administration used this provision to generally block land entry for many migrants. This practice was initially continued by the Biden administration[2] before the program was terminated with the end of the COVID-19 national emergency on May 12, 2023. Title 42 of the United States Code includes numerous sections dealing with public health, social welfare, and civil rights, but, in the context of immigration, the phrase "Title 42" came to be used to refer specifically to expulsions under section 265.

The program allows U.S. Customs and Border Protection (CBP) to prohibit the entry of persons who potentially pose a health risk by being subject to previously announced travel restrictions or by unlawfully entering the country to bypass health-screening measures.[3][4][5] Persons subject to the order are not held in congregate areas for processing and are instead immediately expelled to their country of last transit.[4] If they are unable to be returned to the country of last transit (because that country will not accept them due to their nationality), CBP will work with its interagency partners to expel the person to their country of origin.[4] In some cases, this is not possible, and migrants may be expelled to a third country that will accept them based on previous residency.[6] Expulsions under Title 42 are not based on immigration status and are tracked separately from immigration.[4] At the discretion of the presidential administration, Title 42 can be used even for people who would normally have temporary protected status based on their country of origin.[7]

The CDC's policy under Title 42 was unenforceable from November 15, 2022, when D.C. federal judge Emmet G. Sullivan ruled that the policy is a violation of the Administrative Procedure Act,[8] until December 19 when the chief justice of the United States, John Roberts, issued a temporary hold on Sullivan's ruling,[9] followed by the full court in a 5–4 vote on December 27.[10]

In the days preceding the policy's repeal on May 11, 2023, the number of migrants crossing the border increased.[11] To mitigate the potential surge in border crossings following the end of Title 42, the federal government implemented new rules for incoming migrants at the US-Mexico border. These new rules bar from the United States those who attempt to enter illegally for five years if they do not qualify for asylum.[11] The new rule also presumes that migrants are ineligible for asylum if they did not arrive at a legal port of entry or if they passed through other countries first without seeking asylum.[11] This policy has contributed to a decline in both 'gotaways' and border encounters as those who are apprehended are subject to stricter rules upon removal from the United States if they were to attempt to reenter.

Code

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Title 42 of the United States Code, Chapter 6A, Subchapter II, Part G, Section 265 states:[12]

§265. "Suspension of entries and imports from designated places to prevent spread of communicable diseases
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 and property is required in the interest of the public health, the Surgeon General, in accordance with regulations approved by the President, shall have the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate in order to avert such danger, and for such period of time as he may deem necessary for such purpose." (July 1, 1944, ch. 373, title III, §362, 58 Stat. 704.)

History

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The provision was enacted as part of the Public Health Service Act of 1944.[12]

2020

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In March 2020, the Center for Disease Control under the Trump administration issued a public health order allowing for the rapid expulsion of unauthorized border crossers and asylum seekers, citing COVID-19 concerns.[13] As it is considered an "expulsion" rather than a "deportation", the migrants were not afforded the right to make a case to stay in the U.S. before an immigration judge.[14] Most migrants subject to the orders were returned to Mexico within hours.[15] Trump advisor Stephen Miller had a role in shaping the policy,[16] and has since defended it in interviews.[17]

In November 2020, a federal court ordered a halt to the practice in regard to unaccompanied minor children;[18] on January 29, 2021, the stay was lifted by DC Circuit Court of Appeals, allowing minors to be expelled pending its review of the case.[19]

2021

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In February 2021, Mexico stopped accepting families with children under the program.[15] Physicians for Human Rights noted that the policy had been applied unfairly against migrants and asylees and that its stated purpose of containing the spread of COVID-19 was dubious as the U.S. continued to allow millions of people to cross the US–Mexico border weekly.[20][21][22] In early February 2021, the Mexican government announced that it would stop accepting non-Mexican family units with minor children returned to Mexico under Title 42.[23][24]

In June 2021, it was reported that the Biden administration had been considering rescinding Title 42.[25] However, in September 2021, NPR reported that the administration had defended Title 42 expulsion in court under the pretext of slowing the spread of COVID-19.[26]

In December 2021, Anne Schuchat, the second-highest official at the CDC, testified that the expulsions of migrants under Title 42 lacked a sufficient public health rationale.[27]

2022

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Arrests (light blue) and gotaways (dark blue)[28]

In March 2022, the DC Circuit Court of Appeals ruled that the Biden administration could continue to swiftly remove migrant families under Title 42, but "only to places where they will not be persecuted or tortured."[29]

On April 1, 2022, the CDC officially announced they would end Title 42 expulsions. However, in order to allow for the implementation of a vaccine program to get migrants vaccinated at the border, the policy was not scheduled to officially end until May 23, 2022.[30] On May 20, federal judge for the United States District Court for the Western District of Louisiana, Robert R. Summerhays, issued a ruling blocking the CDC from ending Title 42 expulsions.[31]

That same month, in response to the Russian invasion of Ukraine two months earlier, the Biden administration introduced an unprecedented streamlined program for any Ukrainian nationals who pass various checks and are sponsored by various organizations under the "Uniting for Ukraine" program to be exempted from Title 42 and get humanitarian parole and work permits.[32] In October 2022, it introduced a similar program for Venezuelan nationals, who must arrive by air. The number of Venezuelans was capped at 24,000, and those arriving by crossing into Mexico or Panama illegally would start to be expelled under Title 42.[33][2][34][35][36] Amnesty International and Human Rights Watch criticized the latter aspect of the plan.[37][38]

On November 15, 2022, Senior Judge of the United States District Court for the District of Columbia, Emmet G. Sullivan, ruled that expulsions under Title 42 were a violation of the Administrative Procedure Act, noting that the policy was an "arbitrary and capricious" violation of the Act.[8] The ruling required the United States government to process all asylum seekers under immigration law as previous to Title 42's implementation, and Sullivan specifically called out the CDC for intentionally ignoring the negative effects of implementing Title 42 and not considering alternative approaches to expulsion such as vaccination, outdoor processing, and allowing asylum seekers to quarantine with U.S. relatives.[8] Sullivan opined that the policy had no rational basis as COVID-19 was already widespread throughout the U.S. when the program was initiated.[8] The ruling was celebrated by the ACLU, a plaintiff in the case.[8][39]

In response to the ruling, a group of states seeking to keep the policy in place appealed to the U.S. Supreme Court, and on December 19, 2022, Chief Justice John Roberts temporarily maintained Title 42 and stayed the decision by Judge Emmet G. Sullivan.[40][9][41] On December 27, the Supreme Court granted a stay against Sullivan's decision with a 5–4 split. The case, Arizona v. Mayorkas, was set for oral argument, though it was about whether the states were allowed to intervene, rather than the merits of the policy.[10]

2023

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'Gotaway' rate fell to historic lows after Title 42 ended in May 2023[42]

The Biden administration lifted the order authorizing Title 42 on May 11, 2023,[43] when the federal government ended the official national emergency on COVID-19.[44] Senators Thom Tillis and Kyrsten Sinema in May 2023 introduced a bill to extend Title 42, but it was never was voted on.[45] The House of Representatives also passed a Republican-led bill to improve border security following the end of Title 42, but it failed in the Senate.[46] In order to mitigate any potential increase in migrants due to the end of this policy, the Biden administration announced plans to strengthen the number of troops stationed at the U.S.–Mexico border.[47] U.S. cities expected to receive some of these migrants once they crossed the border. New York City said it was receiving 500 cases a day and expected that number to rise after Title 42 expired on May 11.[43][needs update] The Texas cities of Brownsville, Laredo, and El Paso declared a state of emergency in anticipation of more migrants.[48][needs update] Texas governor Greg Abbott also announced that Texas would resume a program to send migrants to cities controlled by Democrats, such as Los Angeles, Chicago, Denver, and Washington, D.C.[49][needs update]

Reception

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Title 42, which resulted in many repeat attempts from people expelled,[50] led to illegal border crossings at record levels between 2021 and 2023, averaging around 2 million people per year,[51] as well as an increase in 'gotaways' which dropped to a record low rate after Title 42 expired.[52] This drop in gotaways allows border patrol to apprehend more criminals and make the border more secure.[52] In fiscal year 2023, CBP figures showed that 169 people on the United States’ terrorist watch list were arrested at the border, compared to 98 in the previous fiscal year and 15 in 2021.[53] In the year after Title 42 ended, the Biden administration deported more people than in any year since 2010.[54]

Criticism

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'Gotaways' surged during Title 42 compared to Title 8[28]

Title 42 has been criticized by several human rights groups including the American Civil Liberties Union,[55] Amnesty International USA,[56] Human Rights Watch,[57] Human Rights First,[58] and the American Immigration Council.[59] These groups argue that the policy allows the United States to illegally expel asylum seekers without any legal process.[55]

In February 2021, more than 60 congresspeople, led by Congresswoman Frederica S. Wilson, House Foreign Affairs Committee Chair Gregory W. Meeks, Congresswoman Pramila Jayapal, and Homeland Security Committee Chair Bennie G. Thompson, sent a letter to Homeland Security Secretary Alejandro Mayorkas calling on him to end the practice. In the letter, they argued that Mayorkas should employ alternative forms of humanitarian relief for detainees subject to deportation for the remainder of the pandemic.[60]

More criminals were allowed to enter the United States due to the overwhelming number of border crossings fueled by Title 42, with repeat migrants who did not face the same penalties for trying to reenter the country if they were processed under Title 42 in comparison to Title 8.[52][50]

Statistics

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The nearly 3 million Title 42 expulsions listed by month and by department from March 2020 to May 2023:[3][4]

Month U.S. Border Patrol Office of Field Operations Total
March 2020 7,094 76 7,170
April 2020 15,018 526 15,544
May 2020 20,084 875 20,959
June 2020 28,534 1,423 29,957
July 2020 35,444 1,694 37,138
August 2020 42,808 2,272 45,080
September 2020 48,839 2,546 51,385
October 2020 (FY 2021 start) 63,006 2,777 65,783
November 2020 61,326 2,454 63,780
December 2020 60,535 2,498 63,033
January 2021 62,383 2,230 64,613
February 2021 70,200 2,213 72,413
March 2021 101,931 2,343 104,274
April 2021 109,993 2,029 112,022
May 2021 110,717 2,241 112,958
June 2021 103,110 2,358 105,468
July 2021 93,830 2,727 96,557
August 2021 93,117 2,290 95,407
September 2021 100,558 2,115 102,673
October 2021 (FY 2022 start) 92,632 2,710 95,342
November 2021 87,843 3,073 90,526
December 2021 79,220 3,491 82,711
January 2022 76,312 3,335 79,647
February 2022 90,773 3,534 94,307
March 2022 109,372 3,965 113,337
April 2022 98,090 3,912 102,002
May 2022 103,354 4,453 107,807
June 2022 92,785 4,709 97,494
July 2022 72,260 5,249 77,509
August 2022 71,153 6,080 77,233
September 2022 72,494 4,970 77,464
October 2022 (FY 2023 start) 80,097 5,004 85,101
November 2022 69,101 4,339 73,440
December 2022 51,385 4,036 55,421
January 2023 66,538 3,509 70,047
February 2023 76,209 3,920 80,129
March 2023 91,160 3,837 94,997
April 2023 84,203 3,007 87,210
May 2023 31,585 1,154 32,739

See also

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References

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  1. ^ "Nationwide Enforcement Encounters: Title 8 Enforcement Actions and Title 42 Expulsions". U.S. Customs and Border Protection (CBP). 13 October 2023. Archived from the original on 8 September 2024.
  2. ^ a b Rebecca Beitsch, Rafael Bernal (2022-10-18). "Biden embraces Trump's Title 42 with expansion to Venezuela". The Hill. Retrieved 2022-10-18.
  3. ^ a b "FY 2021 Nationwide Enforcement Encounters: Title 8 Enforcement Actions and Title 42 Expulsions". Department of Homeland Security. Retrieved February 13, 2021.
  4. ^ a b c d e "FY 2020 Nationwide Enforcement Encounters: Title 8 Enforcement Actions and Title 42 Expulsions". Department of Homeland Security. Retrieved February 13, 2021.
  5. ^ "Q&A US Title 42 Policy to Expel Migrants at the Border". Human Rights Watch. April 8, 2021. Retrieved November 3, 2021.
  6. ^ "US Expels Venezuelan Migrants to Colombia Under Title 42 Powers". Latino Rebels. Associated Press. 2022-02-02. Retrieved 2023-12-14.
  7. ^ "Court injunction to prevent end of Title 42 will continue to endanger thousands fleeing harm | International Rescue Committee (IRC)". www.rescue.org. Retrieved 2023-12-14.
  8. ^ a b c d e Alvarez, Priscilla (2022-11-15). "Federal judge blocks Title 42 rule that allowed expulsion of migrants at US-Mexico border, restoring access for some asylum seekers | CNN Politics". CNN. Retrieved 2022-11-15.
  9. ^ a b "SCOTUS No. 22A544 Arizona, et al., v. Alejandro Mayorkas, Secretary of Homeland Security, et al." (PDF). Supreme Court of the United States. Archived (PDF) from the original on 2022-12-20. Retrieved 19 Dec 2022.
  10. ^ a b Stohr, Greg (December 27, 2022). "Supreme Court Orders Title 42 Border Rule Kept in Effect (2)". Bloomberg Law. Retrieved December 27, 2022.
  11. ^ a b c Blake, Michael Roy; Hesson, Ted; Blake, Michael Roy; Hesson, Ted (2023-05-11). "Border crossings top 10,000 daily as migrants seek US entry before Title 42 ends". Reuters. Retrieved 2023-05-11.
  12. ^ a b "U.S. Code, Title 42, Chapter 6A, Subchapter II, Part G, Section 265". U.S. Government. Retrieved February 13, 2021.
  13. ^ Owen, Quinn; Brantley-Jones, Kiara (August 6, 2020). "CBP chief defends rapid border 'expulsions' as unauthorized crossing attempts grow". ABC News.
  14. ^ Solis, Dianne (February 10, 2021). "White House warns immigrants against travel as new Border Patrol numbers show arrivals are edging upwards". The Dallas Morning News.
  15. ^ a b Barr, Luke; Owen, Quinn (February 4, 2021). "Mexico stops accepting families turned away from the US/Mexico border due to Trump-era COVID-19 order". ABC News.
  16. ^ Jaci (21 March 2022). "Emails Show Stephen Miller Led Efforts to Expel Migrants at Border Under Title 42". American Oversight.
  17. ^ "Biden border policy a 'public health' crisis as Delta variant spreads among migrants". August 2021.
  18. ^ "District Court Blocks Trump Administration's Illegal Border Expulsions". ACLU. November 18, 2020.
  19. ^ Aquino, Alyssa (January 29, 2021). "DC Circ. Lifts Block On Migrant Children Expulsion Policy". Law360.
  20. ^ Solis, Dianne; Corchado, Alfredo (January 19, 2021). "Will Biden stop the public health order that has turned away migrants nearly 400,000 times?". The Dallas Morning News.
  21. ^ "Border Crossing Data – Mexico". Bureau of Transportation. December 31, 2020. Retrieved February 13, 2021.
  22. ^ Shepardson, David Shepardson; Hesson, Ted (February 19, 2021). "U.S. extends travel restrictions at land borders with Canada, Mexico through March 21". Reuters. On Jan. 26, 2021 the U.S. government began requiring nearly all international air travelers to get negative COVID-19 test results within three days of travel, but has no similar requirements for land border crossings.
  23. ^ Miroff, Nick; Sieff, Kevin (February 3, 2021). "Mexico has stopped sending some Central American 'expelled' families by U.S. along border". The Washington Post.
  24. ^ Willard, Keenan (February 3, 2021). "Report: Mexico stops accepting Central American families expelled by US along border". KFOX-TV.
  25. ^ Hansen, Claire (June 3, 2021). "Pressure Amps Up on Biden to Rescind Title 42 Border Order". U.S. News & World Report. Retrieved June 29, 2021.
  26. ^ Rose, Joel; Neuman, Scott (2021-09-20). "The Biden Administration Is Fighting in Court to Keep a Trump-Era Immigration Policy". All Things Considered. NPR. Retrieved 2021-12-18.
  27. ^ Camilo, Montoya-Galvez (November 12, 2021). "U.S. Top CDC official told Congress migrant expulsion policy was not needed to contain COVID". CBS News.
  28. ^ a b Bier, David J. (March 4, 2024). "Blog: Border Patrol: 70 Percent Drop in Successful Evasions Since Title 42 Ended". Cato Institute.
  29. ^ Alvarez, Priscilla; Sneed, Tierney (2022-03-04). "Federal appeals court limits Biden administration's use of Trump-era border policy | CNN Politics". CNN. Retrieved 2024-09-06.
  30. ^ Morin, Rebecca (2022-04-01). "Biden administration will rescind Trump-era immigration policy expelling migrants at the border". USA Today. Retrieved 2022-04-01.
  31. ^ "Federal judge blocks Biden administration from lifting Title 42 for now". CNN. 20 May 2022.
  32. ^ Montoya-Galvez, Camilo (2024-04-24). "In 2 years since Russia's invasion, a U.S. program has resettled 187,000 Ukrainians with little controversy - CBS News". www.cbsnews.com. Retrieved 2024-09-06.
  33. ^ Sullivan, Eileen; Kanno-Youngs, Zolan (2022-10-13). "Biden Administration to Offer Thousands of Venezuelan Migrants Legal Path Into U.S." The New York Times. ISSN 0362-4331. Retrieved 2022-11-04.
  34. ^ Pozzebon, Stefano (2022-10-15). "Venezuelan migrants in shock and limbo after new US immigration plan". CNN. Retrieved 2022-10-18.
  35. ^ Perez, José Ignacio Castañeda. "U.S. can now rapidly expel some Venezuelan migrants to Mexico under Title 42". The Arizona Republic. Retrieved 2022-10-18.
  36. ^ "Biden turning to Trump-era rule to expel Venezuelan migrants". Associated Press. 2022-10-16. Retrieved 2022-11-04.
  37. ^ "Biden administration must reverse decision to expand Title 42". Amnesty International. 2022-10-13. Retrieved 2022-11-04.
  38. ^ "US/Mexico: Expelling Venezuelans Threatens Rights, Lives". Human Rights Watch. 2022-10-21. Retrieved 2022-11-04.
  39. ^ Montoya-Galvez, Camilo. "Judge blocks U.S. from expelling migrants under Title 42 policy". CBS News. Retrieved 2022-11-15.
  40. ^ Liptak, Adam (2022-12-19). "Chief Justice Roberts Briefly Halts Decision Banning Border Expulsions". The New York Times. ISSN 0362-4331. Retrieved 2022-12-19.
  41. ^ de Vogue, Ariane (December 19, 2022). "Title 42 to remain in place for now as Chief Justice John Roberts temporarily freezes order meant to end it". CNN. Retrieved December 28, 2022.
  42. ^ Bier, David J. (March 4, 2024). "Blog: Border Patrol: 70 Percent Drop in Successful Evasions Since Title 42 Ended". Cato Institute.
  43. ^ a b Blake, Michael (May 11, 2023). "Border crossings top 10,000 daily as migrants seek US entry before Title 42 ends". Reuters.
  44. ^ Shefte, Whitney. "Texas uses aggressive tactics to arrest migrants as Title 42 ends". Washington Post. Retrieved 2023-05-10.
  45. ^ Montoya-Galvez, Camilo (2023-05-04). "Senate proposal would let U.S. expel migrants after Title 42 ends - CBS News". www.cbsnews.com. Retrieved 2024-09-04.
  46. ^ Demirjian, Karoun (May 11, 2023). "The House is poised to pass a Republican bill cracking down on unlawful migration at the border". The New York Times. Retrieved May 11, 2023.
  47. ^ Bertrand, Natasha; Alvarez, Priscilla; Britzky, Haley (2 May 2023). "Biden admin to send 1,500 troops to southern border for support roles ahead of expected migrant surge". CNN. Retrieved 2 May 2023.
  48. ^ Sandoval, Edgar; Sullivan, Eileen; Jordan, Miriam (May 11, 2023). "Some Texas border cities are already under a state of emergency". The New York Times. Retrieved May 11, 2023.
  49. ^ Vilchis, Raúl; Bosman, Julie (May 11, 2023). "More migrant buses have already begun arriving in cities far from the border". The New York Times. Retrieved May 11, 2023.
  50. ^ a b Chishti, Muzaffar; Bush-Joseph, Kathleen; Montalvo, Julian (April 25, 2024). "Title 42 Postmortem: U.S. Pandemic-Era Expulsions Policy Did Not Shut Down the Border". Migration Policy Institute. During its use, the numbers of encounters surged and cases of migrants attempting unauthorized re-entry soared, as did the number of "gotaways"—the term used by U.S. Customs and Border Protection (CBP) for migrants who were not intercepted while crossing the border illegally. Because Title 42 short-circuited the careful series of consequences that CBP had put in place over earlier years, including criminal prosecution for illegal entry or re-entry, it created major churn at the border: Facing no formal consequences for their unauthorized entry, expelled migrants kept trying to cross until they succeeded.
  51. ^ Miroff, Nick; Sacchetti, Maria; Frostenson, Sarah (2024-02-11). "Trump vs. Biden on immigration: 12 charts comparing U.S. border security". Washington Post. Retrieved 2024-09-01. Illegal border crossings soared to record levels under President Biden, averaging 2 million per year from 2021 to 2023.
  52. ^ a b c Bier, David J. (March 4, 2024). "Blog: Border Patrol: 70 Percent Drop in Successful Evasions Since Title 42 Ended". Cato Institute.
  53. ^ Sullivan, Eileen (2023-11-15). "More Migrants on Terrorism Watch List Crossed U.S. Border". The New York Times. Retrieved 2024-09-02.
  54. ^ Chishti, Muzaffar; Bush-Joseph, Kathleen (June 27, 2024). "The Biden Administration Is on Pace to Match Trump Deportation Numbers—Focusing on the Border, Not the U.S. Interior". Migration Policy Institute. In the 12 months after Title 42 ended, the Biden administration ramped up deportations under the standard U.S. immigration framework, Title 8, and removed or returned 775,000 unauthorized migrants—more than in any previous fiscal year since 2010.
  55. ^ a b "DESPITE PUSHBACK FROM PUBLIC HEALTH OFFICIALS AND CALLS TO END TITLE 42, THE BIDEN ADMINISTRATION CONTINUES TO IMPLEMENT THIS HARMFUL TRUMP-ERA POLICY". ACLU. 2022-01-19. Retrieved 2022-02-19.
  56. ^ "COURT RULING WILL ENDANGER FAMILIES SEEKING SAFETY; BIDEN MUST END TITLE 42". Amnesty USA. 2021-10-01. Retrieved 2022-02-19.
  57. ^ "Q&A: US Title 42 Policy to Expel Migrants at the Border". Human Rights Watch. 2021-04-08. Retrieved 2022-02-19.
  58. ^ ""Illegal and Inhumane": Biden Administration Continues Embrace of Trump Title 42 Policy as Attacks on People Seeking Refuge Mount". Human Rights First. 2021-10-21. Retrieved 2022-02-19.
  59. ^ "A Guide to Title 42 Expulsions at the Border". American Immigration Council. 2021-10-15. Retrieved 2022-02-19.
  60. ^ "WILSON, MEEKS, JAYAPAL, AND THOMPSON LEAD MORE THAN 60 MEMBERS OF CONGRESS CALLING FOR AN END TO TITLE 42 EXPULSIONS". homeland.house.gov. 2021-02-23. Archived from the original on 2022-02-19. Retrieved 2022-02-19.
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