Update 12/8/22: The Biden administration has now appealed Judge Sullivan's ruling, backtracking yet again on their promises to protect asylum rights. While the outcome of the litigation is not yet clear, the administration's decision increases the odds that Title 42 will remain in effect past its currently-scheduled end date.

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Our Efforts Are Still Needed to End Title 42

Despite pledges to end it, the Title 42 policy is still sending people to harm and must be stopped.
Broken barb wire in front of an early evening sky.

May 9, 2022

This is part one of a two-part series on Title 42.

Let’s face it. We didn’t think we’d still be talking about Title 42 in May 2022. President Joe Biden should have taken steps to end this anti-asylum blockade—a legacy of the Trump administration—on his first day in office. Instead, he kept it in place for more than a year. 

When the executive branch finally announced that they would terminate the policy on May 23, asylum-seekers and advocates enjoyed a moment of relief. But it was short-lived. Within days, politicians from both major parties issued calls to leave the Title 42 asylum ban in place. State governments sued in federal court to reinstate it on an indefinite basis. 

At best, these efforts to prolong the Title 42 order reflect a grave misunderstanding of the policy and its actual effects. At worst, they reflect outright hostility and racism against asylum-seekers, who are just trying to survive, escape persecution, and access their human rights under international law. In UUSC’s two-part blog, we provide an update on where things stand with efforts to end the policy and what we can expect in the near future. 

What is Title 42? 

The Title 42 policy is named after an obscure part of the U.S. code that enables the government to “suspend the entry” of people across the border in a time of public health crisis. This section of the law says nothing explicitly about expelling asylum-seekers, but the Trump and Biden administration have both invoked it, nonetheless, to seal off ports of entry to asylum-seekers and expel people who cross the border outside designated ports. 

These expulsions are carried out immediately, without offering people an asylum hearing, credible fear screening, or any of the other typical procedures under U.S. immigration law that are designed to ensure refugees are not sent back into the hands of those who wish them harm.

 

The policy has been applied during the pandemic, but numerous scientists and public health officials have said for years that it does nothing to protect people from the COVID-19 virus or to promote public health. To the contrary, Title 42 has caused immense human suffering by trapping people in dangerous conditions in Mexico and forcibly sending asylum-seekers to their home countries, without a screening to ensure they are not at risk of persecution. 

Will ending Title 42 cause big problems at the border, like we are being told? 

No. When plans to end Title 42 were leaked to reporters, the media published a number of sensationalized stories warning of an impending “crisis” at the border. Many of these reports were based on a hypothetical contingency that the Department of Homeland Security said they were planning for, as one possibility among many—not an intelligence assessment of what would likely happen once the policy ends. 

In reality, there are several ways that ending Title 42 and restoring access to asylum at U.S. ports of entry would actually make the border far safer, more humane, and less chaotic. 

First, ending Title 42 does not mean that the border is “open.” On its own, ending this policy would not even address many other cruel and punitive aspects of the U.S. immigration system. It simply means the U.S. government goes back to processing people under normal immigration law, exactly as it did up until March 2020. 

This ensures that access to asylum hearings would be restored for those who express fear of return to their home countries; but unfortunately it also means other cruel and unjust policies might be used more frequently. To our dismay, the Biden administration has indicated that—in the wake of Title 42’s end—they plan to expand the use of criminal prosecutions, expedited removal, and detention to deter people from migrating. These policies long predate Title 42, and UUSC has worked to oppose them for years. We will continue to call for their end whether Title 42 is in effect or not. 

Secondly, Title 42 has itself directly caused disorder and chaos at the border; therefore ending it will vastly improve the situation. By stranding people in desperate conditions for more than two years, the Title 42 asylum shutdown has put people at the mercy of kidnappers and extortionists, creating a profit stream for organized crime. Moreover, by shutting down ports of entry to asylum-seekers, the policy has forced people to rely on smugglers who control the more dangerous crossings outside of official ports. This has needlessly jeopardized people’s lives and benefits no one apart from smugglers. 

The most secure, humane, and orderly way to process people at the border continues to be to simply allow people to approach ports of entry and begin the asylum process there. By preventing this, Title 42 has provided a financial windfall to smugglers and cartels, but it has been a dead loss for everyone else.

In part two of our series, we’ll examine how the U.S. Congress and Supreme Court are trying to address Title 42.

Photo Credit: iStock—Arthit_Longwilai

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