What Lifting Title 42 Means for Asylum Seekers (OPINION)

A woman embraces a child at the Good Samaritan shelter in Juarez, Mexico, Wednesday, March 30, 2022. The vast majority of people staying at the shelter are women and their children from Mexico and Central America who have been expelled under Title 42 authority or were still waiting to try for asylum, according to Pastor Juan Fierro, the shelter’s director. (AP Photo/Christian Chavez)

HOUSTON — Migrants coming to the United States for asylum have been forced for years to live in shelters and, many times, on the streets in Mexico, making them vulnerable to cartels, gangs, rapists, and kidnappers as they wait for word on their cases. In Nuevo Laredo, one of the most dangerous cities for migrants, more than 130 people have been kidnapped after being sent there because of the Migrant Protection Protocols (MPP) and Title 42.

More than 11,500 people have been removed from the U.S. and sent to the border city to await decisions on their asylum cases under MPP. Meanwhile, more than one million expulsions have been carried out under Title 42. The Trump administration implemented both policies to seemingly deny non-white asylum-seekers entry into the U.S. under the guise of preventing the spread of communicable diseases such as COVID. Rather than end them, the Biden administration continued them.

While Title 42 is part of the Public Health Service Act of 1944 —which allows the “suspension of entries and imports from designated places to prevent spread of communicable diseases”— the strength of MPP, otherwise known as the “Remain in Mexico” policy, was dubious, at best.

Despite the Biden administration’s attempts to end MPP, and the American Federation of Government Employees —which represents 13,500 employees of U.S. Citizenship and Immigration Services— saying their enforcement of the policy makes them complicit “in violations of U.S. federal law and binding international treaty obligations of non-refoulment that they have sworn to uphold,” a federal judge ordered the government to restart the program in August of last year.

Many are wondering what happens to asylum-seekers now that the Supreme Court ruled in January the Biden administration can lift Trump’s “Remain in Mexico” policy and a federal judge last month ordered officials to end Title 42.

While seemingly similar, the two policies are vastly different. MPP allows migrants to file asylum claims and wait for answers in Mexico. Title 42 denies asylum-seekers their right to due process by prohibiting them to file an asylum claim to begin with.

Both policies have parallel effects that banish already vulnerable migrants seeking sanctuary to notoriously dangerous cities along the border in Mexico. Such intense restrictions lead despairing migrants to make anguished decisions that could lead to their death by crossing the border outside of a point of entry. That same desperation is often used against them, thus, making them targets of human smugglers.

The humanitarian crisis along the border is one created by U.S. immigration policy, which forces migrants to jump through arbitrary hoops just to exercise their right to an asylum hearing.

What Happens Next

In April, I asked the White House what the process would look like for asylum-seekers living in border cities in Mexico with the lifting of either policy. They directed me to the Centers for Disease Control and Prevention (CDC), which provided a link to a previously released statement saying that the U.S. no longer needed Title 42 to mitigate the risks of COVID.

“After considering current public health conditions and an increased availability of tools to fight COVID-19 (such as highly effective vaccines and therapeutics), the CDC Director has determined that an Order suspending the right to introduce migrants into the United States is no longer necessary,” read the statement. “With CDC’s assistance and guidance, DHS has and will implement additional COVID-19 mitigation procedures.”

After more than a year of court rulings back and forth, lifting Title 42 has the Biden administration scrambling to appease what Republicans argue will be a massive influx at the border. The notion of “open borders” has been a propaganda tool of the political right for decades. Whether intentional or not, their rhetoric has led many would-be migrants to make the decision to embark on the perilous journey to the United States, thinking asylum will be easy to obtain.

Yet, the Biden administration has been just as hard on migrants as the Trump administration was, if not more so. Current policies were left in place so the administration wouldn’t otherwise be seen as soft on immigration. Despite most of the language coming from Republicans being misleading, if not outright false, the Biden administration has bowed to them in order to appear as if he’s reaching across the aisle and making efforts at bipartisanship.

But rather than solutions to make the asylum-seeking process more efficient, the continuation of Trump’s hard-line policies has only served to provide a basis for even stricter and harsher policies. Some of the Biden administration’s ideas echo those proposed by the Trump administration. Its approach seems more focused on placating Republicans instead of satisfying human rights, an incrementalism that takes us backward and makes abuses more acceptable.

Since Joe Biden’s election, most of the United States has put their blinders back on, pretending that the inhumanity at the border suddenly disappeared once Donald Trump left office. Yet, the inhumanity hasn’t ended, and the proposed policies will only add to that inhumanity. The longer we keep the doors locked, we increase the chances of asylum-seekers risking treacherous journeys that could end in their deaths.

It is not only cruel but illegal under U.S. and International law.

Increasingly Inhumane Policies

One policy proposal from the Biden administration wouldn’t allow single adults who cross the border outside of a point of entry to seek asylum if they have not first applied via a legal pathway offered by the U.S. or sought protection in a country they traveled through first. These migrants would instead be placed in an expedited removal process denying them due process.

It’s essentially Title 42 with different justifications and more leeway to expel asylum-seekers. Exceptions for extreme cases are expected to be made, however, but the specifics defining them have not been made clear.

In other words, rather than use the health clause in Title 42 to deny migrants their right to be heard, U.S. officials are making it more difficult to apply for asylum by adding additional barriers to entry. It is those hurdles, in conjunction with the system’s inefficiencies, that force migrants to make perilous journeys across deserts and mountain ranges trying to cross the southern border, leaving hundreds dead every year.

A surge in criminal prosecutions for simply crossing the border outside of a point of entry is another proposal being suggested to appease Republican propaganda. In addition, the administration has been working with Latin American countries to implement policies that stem migration to the United States. The State Department has been working with Latin American and Caribbean nations in anticipation of Title 42 being taken away as an immigration tool.

Meanwhile, family separations continue under the Biden administration, highlighting a situation that has shown no improvement since the Trump administration’s implementation of draconian border policies against migrants of color. The only difference is the lack of outrage, as it begins to become apparent that most hated Donald Trump and his racist cronies but not his actual policies. Some have even criticized the Biden administration for reopening the facilities made infamous for keeping “kids in cages” and were initially opened under Trump but subsequently closed in 2019.

With all the liberal praise for the Biden administration, there are many crucial issues that aren’t getting much attention. Law enforcement, Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE) are set to receive record funding, even after a year of record police violence and criminal behavior by CBP and ICE agents. While billions of dollars are set to reach these agencies in the next year or two, the funding for the courts and the implementation of broad efficiency measures are merely drops in the bucket by comparison.

The Biden administration reversing Trump’s policies also fell short of what was promised. In order for Democrats to withstand the attacks from Republicans, they have to appear as tough on crime.

That includes the southern border.

Conclusion

The Biden administration’s plans for the end of Title 42 seem to be centered on criminalizing as many asylum-seekers as possible while denying their right to an asylum hearing. It’s not a Border Patrol agent’s job to determine if someone’s asylum claim is legitimate or not. A migrant’s due process rights are established for that very reason: to verify asylum claims and set court hearings that 80 to 90 percent of asylum-seekers show up to because they are in dire need of a safe place to live.

Too often when we talk about immigration, we remove the human element from the conversation and treat people as numbers. But we have to remember that we are talking about human beings in search of a better life—one promised to them by the United States throughout the decades. But the U.S. has never honored that commitment. U.S. policy in many of the nations represented at the border, from Cuba to Haiti to Honduras, has failed Latin Americans.

On November 15, the Department of Homeland Security issued a statement saying it was filing a motion to stay the judge’s decision lifting Title 42, arguing that to delay the court’s order would allow for a more orderly transition to new policies regarding the U.S.-Mexico border.

“In response to the court’s order, the Department of Justice is filing an unopposed stay motion,” the statement reads. “The delay in implementation of the court’s order will allow the government to prepare for an orderly transition to new policies at the border. But to be clear, under the unopposed motion, Title 42 would remain in place for some period.”

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Arturo Domínquez is a first-generation Cuban American, anti-racist, journalist, and the publisher of The Antagonist magazine. Twitter: @ExtremeArturo