Three Years of Title 42
In March 2020, the world came to an unfamiliar halt. The COVID-19 pandemic was no longer a looming and distant concern. Events rapidly fell off calendars, schools shuttered, and those who could sheltered in place. Our hopes that the impact of the pandemic would be short lived were shattered with each passing month.
Beyond the drastic toll on human life and shifting public health policies, one startling constant has persisted. For three years now, the United States has turned its back on countless asylum seekers under Title 42— a Trump-era policy invoked by the Centers for Disease Control and Prevention (CDC) on March 20, 2020.
The border closure under Title 42 immediately stood out for its cruelty. While the Trump administration was otherwise hesitant to implement COVID safety precautions, the pandemic proved to be an opportunity to further restrict migrants’ access to asylum—permitting the U.S. government to rapidly expel migrants to their home country or Mexico without due process. Since March 2020, it has become increasingly clear that the CDC was pressured into issuing the so-called public health order by an administration that was dead set on excluding asylum seekers by whatever means necessary.
The reasons given to support Title 42 buckled under any scrutiny. The government argued it did not have the infrastructure to safely process asylum seekers in congregate settings, like ports of entry or Border Patrol facilities. The stated concern about the global pandemic stood in stark contrast to the many CBP and Border Patrol officials who refused to use personal protective equipment at work and, as the pandemic wore on, resisted vaccination.
All the while, little effort was made to improve the infrastructure at ports to ensure the U.S. government was able to uphold its legal obligation to offer protection to those fleeing persecution. More than that, the actual logistics of implementing Title 42 confounded its stated purpose. While the policy permitted rapid expulsion without due process, this was easier said than done.
In effect, this meant that some migrants – namely those who not immediately expelled to Mexico – ended up detained in congregate settings for significant periods of time, sometimes in U.S. Immigration and Customs Enforcement (ICE) facilities, before expelled. In these instances, the government expelled migrants despite the fact their Covid status was known to be negative. Similarly, Border Patrol often expelled pregnant women and other people in medical distress from their hospital beds, despite objective knowledge that there was no public health threat.
Since the policy’s inception, logistical obstacles to implementing Title 42 have meant that access to asylum at the U.S. southern border has been arbitrary. Expulsion under Title 42 has been largely dictated by nationality and dumb luck. Many asylum seekers avoided expulsion because Mexico would not take them, or their home country refused to receive expulsion flights. Others were saved because of numerical limitations on flights, lice, or random acts of compassion or fatigue.
The same randomness has applied to Title 42 exemptions. Originally, NGOs led the effort to help migrants gain access to asylum at ports through humanitarian exceptions. Though problematic from the start, this effort has now been displaced by CBP One, a smart phone application that permits migrants to directly request exemptions to Title 42. Unfortunately, the app is riddled with issues, including technological glitches disproportionately impacting brown and Black migrants. The app is all but inaccessible to a broad swatch of migrants who do not possess the language skills, literacy, or technology to use it. At a more fundamental level, many migrants just can’t get an appointment.
This randomness is a real problem. Even if we believe that the initial purpose of Title 42 was not to exclude asylum seekers, it is clearly the goal now. The policy’s supporters believe that it is the last defense against border chaos. However, the randomness of the policy itself has fed into the chaos we are trying to avoid. Title 42 has pushed asylum seekers into irregular migratory paths and created a burgeoning industry for organized crime groups who have preyed on desperate asylum seekers.
Despite the evidence that Title 42 is inhumane and has not reduced border encounters, support for the policy remains steadfast. In ongoing litigation, state governments have fought for Title 42 to stay in place as a migration control mechanism, divorced from the policy’s—albeit flimsy—initial health-based justifications. Even the Biden administration has waffled on Title 42, alternately fighting to end the policy, defending its use in court, and expanding its use.
So where does this leave us now? We finally may have a chance to move forward. The Biden administration has announced that the Covid-19 public health emergency will end on May 11, 2023, and, with it, Title 42 is also set expire. As Title 42 sunsets, the White House has a unique opportunity to learn from the past and return to its campaign promises. Instead, the administration seems poised to resurrect failed and inhumane policies like the proposed asylum transit ban and family detention.
We hope that short-sighted political pressures to institute draconian border policies do not overshadow the calls from advocates to do the right thing. Border “solutions” that myopically focus on excluding migrants miss the point. We are supposed to be a nation of laws and have legal and constitutional commitments to offer migrants a fair process to seek protection. Three years after the start of Title 42, it is time to finally return to our promise to restore access to asylum.
FILED UNDER: covid-19, Title 42