Title 42: The human rights nightmare that just won’t end
Despite being illegal under international law — and defying U.S. refugee law - the U.S. Supreme Court again extended Title 42.
Title 42, a pandemic-era policy that claimed to prevent the spread of COVID-19, has done little to stop the spread, but much to deny asylum seekers their rights to seek asylum and non-return to danger. It was with much celebration, then, when a federal judge blocked the policy on November 15, 2022. In the ruling, the judge declared Title 42 to be an “arbitrary and capricious” violation of the U.S. Administrative Procedure Act. Title 42 was due to expire on December 21, 2022.
However, on December 19, 2022, the Supreme Court surprised many and ruled Title 42 to remain in place while the Court considered a request by 19 states to not end the policy because of increased crossings at the US-Mexico border. On December 27, 2022, the Court again ordered to keep the Title 42 policy in place until the Court issues a ruling following a hearing in February 2023.
Title 42 Background
Title 42 was implemented in March 2020 by the Trump administration at the beginning of the COVID-19 pandemic, using a little used section of U.S. law concerning the “Suspension of entries and imports from designated places to prevent spread of communicable diseases” from the Public Health Service Act of 1944. The policy denies entry to individuals entering the U.S., however the American Immigration Council explains it “does not apply to U.S. citizens, lawful permanent residents, and their spouses and children, nor does it apply to U.S. military personnel or those who arrive at a port of entry with valid travel documents” who could also be carriers of COVID-19.
Proponents for the use of Title 42 cited concerns for the contagious virus spreading within crowded immigration holding facilities; critics argued it to be a deterrent against immigration, especially because Trump advisor Stephen Miller had attempted to implement Title 42 to close the border in 2019 — before the 2020 COVID-19 outbreak. Regardless of intent, a policy developed to be a public health measure against the spread of COVID-19 by closing the U.S. borders with Mexico and Canada resulted in the summary expulsion of migrants and asylum seekers en masse from these borders to their home countries or countries of last transit and suspending in-process asylum applications.
Approximately 2.9 million migrants and asylum seekers have been intercepted by Customs and Border Patrol between April 2020 and March 2022, and an estimated 1.8 million of those were expelled under Title 42. In federal fiscal year 2022 alone, Title 42 has been used to push back an estimated 2.38 million people.
Despite its common reference as a ‘Trump-era’ immigration policy, and then-candidate Biden’s promise to “end Trump’s detrimental asylum policies…[to uphold the] right to seek asylum”, President Biden has actively continued the use of Title 42 for the first 2.5 years of his administration as part of his public health policies during the COVID-19 pandemic.
When on November 15, 2022, a federal judge blocked Title 42 in the ruling of Huisha-Huisha v. Mayorkas, the Biden administration requested a five week stay on the ruling to allow officials time to “prepare for an orderly transition to new policies at the border.” On January 5, 2023, one of these new policies was announced. Ahead of his first trip as president to the southern U.S. border, President Biden announced the expansion of a program to accept up to 30,000 migrants from Cuba, Haiti, Nicaragua and Venezuela — and a commitment to return as many migrants from the same countries who arrive at the U.S. southern border. Those accepted into the U.S. must first apply from their home countries and have a U.S. sponsor before they can travel to the U.S. While this is a welcome addition to a gamut of immigration policies, it will assist far too few migrants and continues the risks of Title 42 violating the rights of those turned away at the border to seek asylum and not be returned to danger.
Title 42: A bipartisan band aid
Since its implementation in 2020, both Democrats and Republicans have leaned upon Title 42 as a ‘border band aid’ to appear ‘tough’ on immigration to their critics. Even after an announcement in September 2022 by President Biden that the COVID-19 pandemic was over, his administration continues to use Title 42 to expel migrants and asylum seekers arriving from many countries — all the while admitting 100,000 Ukrainians in search of refuge, more than 22,000 of whom were admitted at the U.S.-Mexico border despite Title 42 restrictions. The use of Title 42 against Haitians and Venezuelans, but not Ukrainians, appears to reveal more about Biden’s political goals and the U.S.’s anti-immigrant bias than a dedication to the U.S. Refugee Act of 1980.
The most recent ruling to keep Title 42 in place is said to be out of concern for the preparedness of states as they receive an increasing number of migrants, refugees and asylum seekers. However, people forced to remain in Mexico are vulnerable to horrific abuse — kidnapping, extortion and rape are common. Angela Kelley, a former Biden advisor, explained:
“If we just keep trying to extend Title 42, we’re only putting a Band-Aid on what is something that just needs far greater attention”.
The federal government and 19 states knew in March 2020 that when Title 42 would end, there would be a line of migrants, refugees and asylum seekers awaiting at our southern border, in addition to those forced to remain in Mexico under the Migrant Protection Protocols from before COVID-19.
Every single day since March 2020 was a day to prepare for the aftermath.
Every single day of inaction was a choice to not prioritize the needs of the people waiting at our southern border— and it should not be the safety of migrants, refugees and asylum seekers who pay the price for our government’s inaction.
