Title 42 Was a Disaster. What’s Next Doesn’t Look Much Better.
The court-ordered termination of Title 42 marks an important step toward restoring access to humanitarian protections at the border. But the Biden administration must do more to fight the program’s racist legacy.
In November, a federal judge struck down Title 42, an immigration policy exercised broadly under former President Donald Trump during the pandemic and then under President Joe Biden. Since March 2020, border officials wielded Title 42 more than two million times to block or expel asylum-seeking migrants from the United States and force them back into dangerous conditions, whether that was in their country of origin or, often, in Mexico, even if that’s not where they were from. The Biden administration has until December 21 to wind down the program.
The court-ordered termination of Title 42 marks an important step toward restoring access to humanitarian protections at the border. Yet, in addition to appealing the decision, the Biden administration appears poised to double down on policies that punish migrants rather than ensure their safety.
At the onset of the Covid-19 pandemic, the Trump administration, acting through the Centers for Disease Control and Prevention (CDC), took advantage of Title 42 — a then-obscure public health statute — to issue orders blocking and expelling migrants at ports of entry without providing them an opportunity to exercise their right to request asylum. These orders violated U.S. and international laws requiring that all people arriving at the border be permitted full and fair access to asylum and not returned to unsafe conditions.
The Trump administration claimed Title 42 was needed to contain the spread of the Covid virus, but the policy was never actually about safeguarding public health. Senior CDC scientists objected to the Title 42 order when it was first issued. Since, leading epidemiologists and medical experts have confirmed Title 42 was never an evidence-based pandemic response because community transmission — not introduction of the virus through migration — has been driving the spread of Covid-19 within the United States.
By politicizing disease, Title 42 was a thinly disguised attempt to advance a white supremacist, anti-immigrant agenda. Weaponizing the policy was the brainchild of Stephen Miller, one of Trump’s chief immigration advisors with known links to white nationalism. As its architect, Miller played into a prominent trope in white nationalist, anti-immigrant and eugenicist circles that demonized migrants as contagious and disease-ridden. Racist by design, Title 42 was the latest in a series of cruel, illegal policies orchestrated by Miller, which sought to dismantle the asylum system and stem the migration of Black, brown and Indigenous migrants. As predicted, Title 42 has disproportionately harmed asylum seekers from countries in the western hemisphere, including Haiti, Venezuela, Cuba and Honduras.
In spite of widespread condemnation of Title 42, the Biden administration not only failed to end the policy after taking office, but has since renewed, defended and expanded it. In doing so, the administration has normalized the worst embodiments of the prior administration’s anti-immigrant agenda. In a March letter to Biden and Vice President Kamala Harris, dozens of immigration, human rights and border advocacy organizations called attention to the “litany of horrors” resulting from the administration’s Title 42 practices: thousands of migrants expelled to or blocked in Mexico under Title 42 have faced kidnapping, rape and other forms of abuse at the hands of cartels and police, and thousands more have been returned to their country of origin despite fears of persecution. Without access to asylum and facing Title 42 expulsion at ports of entry, asylum seekers have taken increasingly deadly routes to cross the border to safety.
While the court decision striking down Title 42 is cause for some celebration, the Biden administration has prearranged to replace Title 42 with punitive policies that continue endangering migrants, undermining the right to asylum and reinforcing Title 42’s racist legacy.
Senior officials in the Biden administration are already discussing substantial new limits on the number of migrants who can request asylum. The restrictions would prohibit migrants from seeking refuge in the United States unless they were first denied humanitarian relief in another country along the migration route, such as Mexico. This policy would resurrect the Trump-era transit ban, which was used to evade asylum law and punish migrants for seeking asylum.
In April, the administration released a plan with six pillars for border security and preparedness to implement after Title 42 is lifted. It calls for “surging resources” at the border and for strictly enforcing immigration laws. Among the “surge” proposals is one to increase criminal prosecutions for unauthorized entry and reentry into the United States. This comes in spite of a recent federal court ruling that says laws used for such prosecutions—written by eugenicists in the late 1920s—are unconstitutionally rooted in racial animus. The racist motivations behind the law are still being executed today, with Justice Department data showing that roughly 95% of the people prosecuted for unauthorized reentry in fiscal year 2020 – 21 were from Mexico, Honduras, Guatemala and El Salvador.
In the context of Haiti, the Biden administration is embarking on a violent strategy to interdict, detain and deport Haitian asylum seekers who are fleeing deepening political crisis, violence and humanitarian disaster in their country. Instead of allowing Haitians to enter the United States and exercise their right to request asylum, the administration is weighing options to hold Haitians interdicted at sea in third countries and expand migrant capacity at the detention center at Guantánamo Bay, Cuba. This proposal echoes the anti-Haitian policies of the 1990s, when Guantánamo was the staging ground for a makeshift prison camp where thousands of Haitians were detained in deplorable conditions and hundreds with HIV were trapped indefinitely. These latest developments — coming just over a year after heavily armed border agents brutally raided Haitian encampments in Del Rio, Texas—represent yet another chapter in a long and shameful history of racism and mistreatment in U.S. policy toward Haitians.
The Biden administration has purported to create safe pathways to migration. In October, the administration announced a parole program allowing for Venezuelan migrants who meet certain eligibility criteria to enter the United States and request humanitarian relief. But there are catches: Absurdly, the parole process requires migrants to wait in Venezuela while their parole applications are being adjudicated. This process grossly ignores the desperate realities of Venezuelan asylum seekers who are fleeing an escalating humanitarian collapse, political repression and growing food insecurity. Admissions are also arbitrarily capped at 24,000 beneficiaries; Venezuelans accounted for more than 25,000 unique encounters at the border in August 2022 alone. These constraints ensure many Venezuelan asylum seekers cannot access the parole process and must continue relying on dangerous migration routes to reach safety.
Feigning a commitment to humane migration, the Biden administration intends to use the Venezuela parole program to legitimize the punishment of Venezuelan migrants who cannot avail themselves of the inaccessible process. With Venezuela refusing to repatriate its nationals, the administration explicitly conditioned implementation of the parole program on its ability to continue expelling Venezuelans to Mexico under Title 42. Senior administration officials confirmed in late November that the administration plans to keep this arrangement with Mexico in place, even in the absence of Title 42. Instead of Title 42, the administration plans to revert to its more traditional authority to carry out expedited removals.
The expedited removal of Venezuelans to Mexico en masse would not only set a dangerous precedent, but perpetuate the unlawful outcomes of Title 42. Heightened reliance on “expedited removal” — which allows officials to summarily detain and deport asylum seekers without a hearing — will surely be accompanied by an expansion in the use of immigration detention centers, where migrants are routinely deprived of basic human needs, subject to abuse and other human rights violations, and denied access to legal assistance. These policies ensure the current status quo under Title 42, under which migrants are denied access to asylum and returned to danger and abuse in Mexico.
By pursuing these strategies, the Biden administration insists on ignoring the root causes of forced migration. Civil conflict, repression, mass food shortages and economic instability across the southern hemisphere are fueling migration to the U.S. – Mexico border. Through U.S.-sponsored coups, neoliberal policies and brutal sanctions, the U.S. government has played a long-standing role in causing instability in the region and creating the conditions that are forcing people to now flee their homes. Instead of crafting a humane response that remedies decades of the U.S. intermeddling, the Biden administration has promoted a militant response to migration in Central America and Mexico through border security funding and training. These policies have already extended U.S. domination over migration in the broader region, and the administration’s post-Title 42 plans promise to further project U.S. imperialism.
Although the court decision forces the Biden administration to change tactics, the administration’s chosen path of asylum restrictions, intensified enforcement, off-shore detention and expedited removal to Mexico — strategies that punish rather than protect migrants — all but ensures the post-Title 42 landscape for Black, brown and Indigenous migrants does not look remarkably different.
What we need instead is a fundamental reimagining of the migration system. As first steps, the administration must parole all asylum seekers arriving at the border into the United States, expand asylum processing at the border, and release all immigrants from detention.
We must move toward abolishing the harmful structures at the core of our immigration system, including detention and deportation, as well as putting a stop to the U.S. government’s imperialist policies that help create the conditions that force people to flee their homes in the first place. Only then can the racist legacy of Title 42 be truly eviscerated.
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Chiraayu Gosrani is an attorney and advocate for immigrants’ rights. He tweets @cgosrani.
Azadeh Shahshahani is legal and advocacy director at Project South and a past president of the National Lawyers Guild. She tweets @ashshahahani.