Legal Sidebari
COVID-Related Restrictions on Entry into the
United States Under Title 42: Litigation and
Legal Considerations
December 12, 2022
In response to the Coronavirus Disease 2019 (COVID-19) pandemic, the executive branch invoked
statutory powers to impose restrictions on the entry into the United States of certain individuals who are
not citizens or nationals of the United States ( “aliens” as defined in the Immigration and Nationality Act
(INA)). Invoking authority under 42 U.S.C. § 265 (“Section 265”), the Centers for Disease Control and
Prevention (CDC) has directed immigration officials to expel certain individuals—that is, aliens who
either do not have visas or other “proper travel documents” or who seek to enter the United States
unlawfully between ports of entry (POE)—to Mexico or their countries of origin. This Legal Sidebar
provides an overview of Section 265, discusses the application of Section 265 during the COVID-19
pandemic, examines ongoing litigation, and then explores considerations for Congress.
Overview of 42 U.S.C. § 265
The CDC’s order imposed during the COVID-19 pandemic derives statutory authority from a public
health provision in Title 42 of the U.S. Code, specifically 42 U.S.C. § 265, which provides:
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.
In other words, this provision, often called “Title 42,” gives the executive branch the authority to prohibit
the entry of individuals who pose a danger to public health into the United States. The statutory language,
enacted in 1944, refers to the Surgeon General, but a 1966 reorganization plan transferred this authority to
the Department of Health and Human Services, which then delegated this authority to the CDC Director.
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Since 1893, federal public health law has empowered certain federal officials to prohibit the introduction
of persons and property from abroad to stem the introduction of communicable disease from certain
countries. This authority to restrict entry due to communicable disease has been rarely invoked. Prior to
the invocation of Title 42 authority in response to the COVID-19, perhaps the most notable prior instance
where such authority was exercised occurred in 1929, President Herbert Hoover invoked authority under
Section 265’s precursor statute to restrict travel from certain countries during a meningitis outbreak.
The “Title 42” Orders in Response to COVID-19
On March 20, 2020, to combat the spread of COVID-19, the CDC issued an order suspending the
introduction of certain persons into the United States from countries or places where the communicable
disease exists. The CDC has reassessed and extended this restriction on entry since March 2020 several
times, with the most recent rule continuing the restrictions on entry of covered noncitizens issued in
August 2021 (“August 2021 Order”). The order issued by the CDC is implemented by the Department of
Homeland Security (DHS). The order applies to “covered noncitizens,” defined as “persons travelling
from Canada or Mexico (regardless of their country of origin) who would otherwise be introduced into a
congregate setting in a POE or U.S. Border Patrol station at or near the U.S. land and adjacent coastal
borders subject to certain exceptions detailed below; this includes noncitizens who do not have proper
travel documents, noncitizens whose entry is otherwise contrary to law, and noncitizens who are
apprehended at or near the border seeking to unlawfully enter the United States between POE.” The order
applies only to those “covered noncitizens” who lack authorization to enter the United States and who are
encountered “at or near” the border and therefore does not apply to those in the interior of the United
States.
On April 1, 2022, the CDC issued an order terminating the August 2021 Order with an implementation
date of May 23, 2022 (“Termination Order”). The CDC explained in the Termination Order that “[w]hile
earlier phases of the pandemic required extraordinary actions by the government,” more knowledge of the
pathogen and other public health mitigation measures, such as vaccines and treatments, “have permitted
the country to safely transition to more normal routines.” The Termination Order purports to end the
invocation of Title 42 to suspend the entry of covered noncitizens. However, ongoing litigation over the
lawfulness of the agency’s termination of the August 2021 Order has interfered with its termination. Thus,
the August 2021 Order suspending the entry of covered noncitizens has remained in effect despite the
executive branch’s stated intention to end it.
The orders issued under Title 42 have allowed DHS to eliminate the asylum screening procedures that
would typically be available under the INA for certain aliens without authorization to enter the United
States who are encountered at the border. Under the INA, these individuals are inadmissible to the United
States but may initiate claims for asylum or related protections from persecution or torture. To evaluate
such claims, the INA requires DHS to conduct screening interviews for asylum seekers (i.e., “credible
fear” interviews) or refer the asylum seekers directly to proceedings in immigration court where they may
pursue their claims. At the outset of these procedures, DHS’s Customs and Border Protection (CBP)
typically holds asylum seekers in short-term custody in a facility near the border. The orders under Title
42 differ from this standard INA framework by authorizing CBP to “expel” certain “covered noncitizens”
from the United States without granting them access to any screening procedures. (To compare the
implementation of Titles 8 and 42 at the southwest border, see this CRS Infographic.) The CDC had
described the restriction on entry as a necessary measure to avoid outbreaks of COVID-19 in the CBP
facilities where inadmissible aliens typically are held following apprehension.
The August 2021 Order allows CBP to except certain individuals, including unaccompanied alien
children, as well as a catch-all exception for individuals who are considered “covered noncitizens” and
who CBP officers “determine, with approval of a supervisor, should be excepted [from the order] based
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on the totality of the circumstances.” Some circumstances potentially warranting discretion include risks
related to sexual orientation, gender identity, or age, as well as health concerns.
How the orders issued under Title 42 have worked in practice is not always clear. Since March 2020, CBP
has expelled over 2.4 million covered noncitizens under the Title 42 authority, but has continued to
process many aliens under the INA instead. The CDC maintains that covered noncitizens are expelled
under Title 42 “where possible,” but it notes that restrictions imposed by foreign governments (e.g., return
limitations for Venezuelan nationals) has hampered implementing the order. The CDC has also
emphasized that DHS has general discretion to make case-by-case exceptions. Additionally, CBP
reportedly recognizes an exception for aliens who make an affirmative and “reasonably believable”
assertion that they fear torture in the country to which they would be expelled.
Ongoing Litigation
There are currently two major lawsuits concerning the August 2021 Order. In Huisha-Huisha v.
Mayorkas, a group of covered noncitizens brought suit against the executive branch, challenging the
implementation of the Title 42 order. In the other lawsuit, Louisiana v. Centers for Disease Control and
Prevention, several states have challenged the CDC’s Termination Order. This section examines these two
lawsuits.
Huisha-Huisha v. Mayorkas
A group of covered noncitizen families filed a class action lawsuit on January 12, 2021, in the U.S.
District Court for the District of Columbia on behalf of a class of families subject to the restrictions on
entry under Title 42. The court issued a preliminary injunction enjoining the executive branch from
expelling the plaintiffs under the Title 42 order. The court held that the plaintiffs would likely succeed on
the merits of their claim that Section 265 does not authorize removal, that they would experience harm if
they were expelled without the opportunity to seek asylum or other humanitarian relief, and that the
balance of equities and public interest favored granting the relief.
On March 4, 2022, the U.S. Court of Appeals for the D.C. Circuit upheld the preliminary injunction on
appeal but disagreed with the lower court’s conclusion that Section 265 does not allow removal. The D.C.
Circuit explained that Section 265 grants the executive branch “sweeping authority to prohibit aliens from
entering the United States during a public-health emergency; that the Executive may expel aliens who
violate such a prohibition; and that under [8 U.S.C.] § 1231(b)(3)(A) and the Convention Against Torture,
the Executive cannot expel aliens to countries” where they would be persecuted or tortured. The D.C.
Circuit then remanded the case to the district court for further proceedings and resolution of the merits.
On November 15, 2022, declaring the policy to be arbitrary and capricious in violation of the
Administrative Procedure Act (APA), the district court vacated the August 2021 Order in its entirety and
issued a permanent injunction barring its application with respect to the plaintiff class. The court reasoned
that the CDC’s August 2021 Order failed to explain its departure from past practice of using less
restrictive means to protect public health; the executive branch failed to consider the consequences of
suspending immigration practices to certain aliens; the executive branch failed to adequately consider
alternatives, such as the availability of effective therapeutics; and there was a “lack of evidence regarding
the effectiveness of the Title 42 policy.” The court granted a five-week stay of the injunction for the
executive branch to prepare to revert back to processing aliens under the INA. On December 7, 2022, the
executive branch notified the district court of its intention to appeal to the D.C. Circuit the vacatur of the
August 2021 Order and permanent injunction.
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Louisiana v. Centers for Disease Control and Prevention
On April 3, 2022, the States of Arizona, Louisiana, and Missouri (later joined by 21 other states) filed suit
in the U.S. District Court for the Western District of Louisiana, challenging the Termination Order under
the APA. The states claim that the Termination Order violated the APA because (1) the federal
government failed to follow the APA rule-making process; and (2) the Termination Order is arbitrary and
capricious.
On May 20, 2022, the district court issued a nationwide preliminary injunction preventing the
Termination Order from going into effect. The court held that the CDC did not properly follow the APA
rule-making process when it failed to abide by the typical notice-and comment requirements before
issuing the Termination Order. The court rejected the executive branch’s argument that the Termination
Order was exempt from the typical notice-and-comment requirement under the “good cause” and foreign
relations exceptions. At this stage of litigation, the court declined to address the plaintiff states’ argument
that the Termination Order is arbitrary and capricious. In May 2022, the executive branch filed an appeal
to the Fifth Circuit and the appeal remains pending. The federal government provided notice to the Fifth
Circuit of the district court’s vacatur of the August 2021 Order in Huisha-Huisha.
The courts in Huisha-Huisha and Louisiana have issued potentially conflicting injunctions. As discussed
above, Huisha-Huisha resulted in a class-wide permanent injunction vacating and enjoining the
enforcement of the August 2021 Order, while Louisiana resulted in a preliminary injunction effectively
barring the termination of the August 2021 Order. Litigation is ongoing in both cases. Following the
district court’s ruling in Huisha-Huisha, the executive branch indicated that it will prepare to terminate
the August 2021 Order and revert back to processing under the INA. However, it has since stated its
intention to appeal the district court’s ruling vacating the August 2021 Order, and has requested that the
district court case be held in abeyance pending resolution in the Louisiana litigation. Several states
involved in the Louisiana litigation have also filed a motion to intervene in the Huisha-Huisha litigation
to oppose the termination of the August 2021 Order. In addition, an appeal of the preliminary injunction
issued in Louisiana remains pending in the Fifth Circuit.
Considerations for Congress
The invocation of Section 265 to prevent the “introduction of persons” at the border to combat the spread
of communicable disease raises important considerations for Congress about the scope and application of
the statutory provision. As discussed above, Section 265 appears to grant the executive branch broad
authority to prevent the entry of persons and property to combat communicable disease. Congress may
use its legislative authority to amend Section 265 to impose certain guidelines or restraints on this
authority. For instance, Congress may consider clarifying the standard for determining when the executive
branch might invoke this authority. Another possibility would be to impose a timeframe on this authority
and a special procedure for either continuing or terminating its invocation. Congress might also consider
whether certain aliens should be exempt from Section 265 restrictions on entry, such those seeking
asylum or other humanitarian relief. Alternatively, Congress may desire for the executive branch to
continue to have broad discretion in order to respond to rapidly developing situations involving
communicable disease.
The 117th Congress has introduced some bills touching upon the use of Section 265. For example, H.R.
7760 would impose certain procedures before terminating a determination under Section 265 that
suspends the entry of certain individuals. Another bill, S .4022, would codify the entry restrictions under
Title 42 in response to COVID-19, suspending the introduction of covered noncitizens until February 1,
2025.
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Author Information
Kelsey Y. Santamaria
Legislative Attorney
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