Good news has been rare in recent years. So, when a U.S. federal judge finally struck down the abhorrent Trump-era Title 42 policy earlier this week, it was impossible not to breathe a sigh of relief –at least for a moment. There’s little certainty, however, about what’s coming next at the U.S.-Mexico border: it could be chaotic if asylum seekers who’ve been bottled up for over two years all come at once. A more orderly, humane, and safe border is likely in the medium term, however, if the Biden administration turns away from failed “deterrence” approaches.
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, which U.S. legislation guarantees. Mexico agreed to accept rapid land-border expulsions of its own citizens, and of citizens of El Salvador, Guatemala, and Honduras.
Trump claimed the order was being put in place to protect the health of people living in the United States. Officials at the Centers for Disease Control and Prevention (CDC) and the UN Refugee Agency 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. The vast majority of the more than 2.4 million times that U.S. authorities have expelled migrants under Title 42 took place during the Biden years. The CDC sought to terminate Title 42 in May 2022 only to see a federal judge, in a suit brought by Republican state attorneys-general, force the policy to continue. The Biden administration energetically went along with that order: in October 2022, it even convinced Mexico to expand Title 42’s use, allowing land-border expulsions of Venezuelan migrants.
Well over 90 percent of these protection-seeking migrants were sent to Mexico, where human rights organizations 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 under Title 42.
Advocates and litigators, however, never gave up. They were determined to ensure respect for migrants’ right to access protection. On November 15, Judge Emmet Sullivan of the D.C. District Court ruled that Title 42 “arbitrarily and capriciously” violates U.S. law and has no basis in public health. The ruling was issued in response to a class action lawsuit launched on behalf of refugee families. At the government’s request, Judge Sullivan granted a five week stay on his order to allow the government to prepare for the change; it will become effective on December 21.
Under Sullivan’s ruling, undocumented migrants seeking asylum can no longer be expelled. Instead, as it was the case before Title 42 was invoked, CBP will process asylum seekers according to U.S. immigration law.
Many single adults will probably await their U.S. asylum hearings in Immigration and Customs Enforcement (ICE) detention facilities, a cruel practice that migrant rights advocates view as unnecessary in the vast majority of cases. As has already been happening, unaccompanied children from countries other than Mexico will be admitted and placed with relatives or sponsors by the Health and Human Services Department’s Office of Refugee Resettlement (ORR). Families will mostly be released into the United States and monitored by “alternatives to detention” programs.
While it is impossible to predict future events, two things are clear. First, the number of protection-seeking migrants arriving at the southern U.S. border is likely to rise in the short term. Tens of thousands have been waiting in neighboring Mexico for Title 42 to end. However, as Title 42’s quick expulsions will no longer enable repeat crossing attempts without consequences for migrants not seeking asylum, numbers could quickly decline after an initial increase. Second, the Biden administration—while appearing to use Title 42 to buy time—has not done enough to prepare for its end.
In order to catch up to reality, the Biden administration needs to invest time and resources in three areas.
First, it needs to improve processing at the border. This includes the ability to efficiently check people’s backgrounds and health records, begin asylum paperwork, evaluate the credibility of fear claims, and other tasks that must take place within 72 hours of an individual’s arrival. This in turn means having facilities with the space and personnel to process protection-seeking migrants in an orderly and humane fashion. Staff need not be armed, uniformed Border Patrol agents: “processing coordinators” and other trained civilians can perform these often bureaucratic but necessary tasks.
Second, authorities need to ensure humanitarian support is available, particularly considering many will arrive hungry and sick. Third, the government must work with shelters, local organizations and governments to facilitate transportation away from border communities to migrants’ intended destinations in the U.S. interior, where they often have relatives or other support networks.
Along with these three immediate steps, the administration must redouble efforts to improve asylum adjudication capacity, cutting wait times and reducing backlogs while guaranteeing due process.
It is disappointing that these measures aren’t in place yet. Sharp increases in migrants and asylum-seekers have been a reality at the U.S. border since 2014. Since the mid-2010s, countries throughout the hemisphere have been taking in sharply increased numbers of protection-seeking migrants from Venezuela, Cuba, Haiti, Central America, and elsewhere. Today’s reality is no longer new, but the U.S. border apparatus remains bizarrely designed for a population of single adult migrants without protection needs. We have lost too much time in denial, failing to adjust.
The U.S.-Mexico border needs a robust system that can process protection-seeking migrants effectively and in a humane way. It also needs guarantees that the U.S. will not revert to adopting punitive measures in an attempt to deter people from even approaching the border.
To be sure, migration can pose great challenges, the kind that the U.S. should not be tackling alone.
The end of Title 42 is also likely to put a lot of pressure on the Biden administration to speed up cooperation with governments across the region –particularly, but not exclusively, Mexico– and secure real commitments to provide humanitarian assistance, increased legal pathways for migration, and access to protection for the growing migrant population. At the same time, it must continue to explore opportunities for the kind of investment that helps people no longer feel that fleeing their countries is the only option they have.
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, hold great promise if authorities across the region translate them into real actions. Only then will governments be fulfilling their duty to protect some of the world’s most vulnerable populations.