Wednesday December 21 was the court-established deadline for the end of “Title 42”, a pandemic-era policy designed to expel many undocumented migrants quickly, without even affording them the right to ask for protection, which U.S. legislation guarantees. As of December 20, that end date is delayed, as the U.S. Supreme Court decides whether to prolong Title 42 while a Republican-governed states’ appeal proceeds. Since it was first imposed in mid-March 2020, the Trump and Biden administrations have used Title 42 about 2.5 million times to expel migrants.
On November 15, a Washington, D.C. federal district court struck down Title 42. Judge Emmet Sullivan said the policy had been used in a “arbitrary and capricious” way, but acceded to a Biden administration request for five weeks to prepare for its end.
What happens in the coming days and weeks is likely to set precedents with lasting consequences for the right, enshrined in U.S. law more than 40 years ago, to seek asylum at the U.S.-Mexico border.
Here’re five reasons why this policy must end.
The right to seek asylum is guaranteed by U.S. and international legislation.
Section 1158 of Title 8 of the U.S. Code could not be any clearer in this respect. Attempting to block fundamental protection places lives in danger, eroding the United States’ claim to be a nation that takes in freedom-seeking immigrants. The Biden administration has been using Title 42 to expel migrants more than 2,500 times per day in recent months; a significant portion of that population faces real threats to their lives. Title 42 is denying them protection and endangering them.
Section 265 of Title 42 is a provision of the U.S. Code dating back to the 1940s. It is an imprecisely phrased 128 word-long paragraph that allows U.S. health authorities to deny entry of people or property into the United States “to prevent spread of communicable disease.”
When the COVID-19 virus was declared a pandemic in mid-March 2020, then-president Donald Trump invoked the order. His anti-immigration administration interpreted Title 42 to mean that Customs and Border Protection (CBP) could expel undocumented migrants quickly, without even affording them the right to ask for asylum. Mexico agreed to accept rapid land-border expulsions of its own citizens, and of citizens of El Salvador, Guatemala, and Honduras. Many other migrants, including more than 25,000 Haitians discussed below, were expelled to their home countries by air.
Trump claimed the order was being put in place to protect the health of people living in the United States, and that of border agents holding migrants in custody in congregate settings. Officials at the Centers for Disease Control and Prevention (CDC), the UN Refugee Agency, medical professionals, and others did not agree.
Things improved only modestly after Trump left office. The Biden administration stopped the expulsion of unaccompanied children, but otherwise left the order in place and in mid-October, negotiated with Mexico to extend its use to Venezuelan migrants.
The policy persists due to a May 2022 court order, in a suit brought by Republican state attorneys-general before a Louisiana judge. That order came more than a month after the CDC determined that the prevalence of COVID-19 in the United States was no longer severe enough to require denial of the right to asylum. Today, even as Americans go mostly unmasked through airports and shopping malls, and as CBP facilities fill with migrants from hard-to-expel countries, this “public health” provision persists. It is one of the last vestiges of the federal pandemic restrictions that prevailed in 2020-2021.
Title 42 creates a system that excludes asylum seekers based on nationality and not according to their protection needs. Citizens of the five countries whose citizens Mexico has agreed to accept as land-border expulsions (Mexico, El Salvador, Guatemala, Honduras, and Venezuela) face a very high probability of being expelled under Title 42, because expulsions are cheap and easy for U.S. border authorities to carry out: agents just take migrants to the borderline and leave them there. Citizens of most other countries face a very low probability of expulsion, because they must be expelled by air, which is expensive and, in some cases, impossible due to poor diplomatic relations with the receiving country. The absurd result is that someone’s probability of being given the opportunity to request protection at the U.S.-Mexico border mostly depends on where they were born.
By preventing people in need of protection from claiming asylum, Title 42 exposes expelled migrants to grave dangers in Mexico, and pushes other migrants to take dangerous journeys into the United States undetected, often putting their lives at risk.
The United States has already expelled migrants about 2.5 million times, the majority under the Biden administration. Well over 90 percent of these protection-seeking migrants were sent to Mexico, where human rights organizations have documented patterns of systematic abuse, including assaults, robberies, rapes, and ransom kidnappings. During March 2022 visits to Mexican cities bordering Texas, humanitarian workers told WOLA that organized crime groups’ members wait every day near border bridges, watching for expelled migrants to abduct. Over 25,000 Haitians were also returned to their violent and unstable country by air, on over 300 flights, including over 14,500 under Title 42.
Alarmingly, even if Title 42 does end, media reports indicate that the Biden administration is seriously considering controversial and possibly illegal policies that would continue to curtail the right to seek asylum. These may include a so-called “transit ban,” refusing asylum applications from non-Mexican migrants who did not first attempt to seek asylum in other countries along their route to the United States. That, in turn, may mean U.S. pressure on Mexico to continue accepting removals of other countries’ citizens across the land border.
This and similar measures, reminiscent of the Trump era, would set a terrible worldwide post-pandemic precedent. They would constitute a frontal attack on the post-World War II humanitarian principles that made the right to asylum an internationally accepted norm enshrined in U.S. law. WOLA implores the Biden administration not to implement a “transit ban” or similar policies that would condemn thousands of people to real and imminent harm, just as Title 42 continues to do.
The Biden administration has repeatedly called for a regional approach to migration.
The conversations that led to the Los Angeles Declaration on Migration and Protection, signed by 21 countries in the region at the Summit of the Americas in June 2022, hold great promise, at least if authorities across the region translate commitments into real actions.
But in order to continue persuading other countries to take more meaningful steps to manage migration and expand legal pathways, including access to asylum the Biden administration must lead by example. Whether Title 42 ends promptly or is further delayed by the Supreme Court, the Biden administration must start putting plans in place for its termination and open the U.S. border to all asylum seekers, rather than considering further measures that limit access to protection. This includes investing time and resources in three areas: restoring the right to seek asylum by improving processing at the border, ensuring humanitarian support is available for those arriving and coordinating the local, state and federal response, and redoubling efforts to improve asylum adjudication capacity, cutting wait times and reducing backlogs while guaranteeing due process.