“Expelling asylum seekers under Title 42 has not done anything to protect us from COVID” From the Congressional Testimony of Dr. Adam Richards, Physicians for Human Rights
Title 42 appears to be on its way out. After two years and 1.8 million expulsions, impacting well over 1 million people, Biden announced, and the CDC confirmed, that Title 42 would end on May 23, 2022.
Despite the fact that Title 42 was sold as a stopgap, emergency measure to impede the expansion of COVID-19, people are still freaking out. The Attorney Generals of Arizona, Louisiana and Mississippi, for example, filed a lawsuit to block the administration from ending Title 42. The Arizona Attorney General, Mark Brnovich, who is also running for governor as a Republican, said, “If Title 42 ends, it will result in an even greater crisis at the border that will have a devastating impact, not just on border states, but across the country.” How ending Title 42 will lead to “devastation” across the country is not very clear.
In addition, six Republicans and five Democrats in the Senate proposed an amendment to block the administration's efforts to bring Title 42 to a close. The argument they are making is that DHS is not ready to handle the expected increase in people trying to cross, even as DHS has laid out a detailed plan about how they plan on dealing with an increase. Of course, no one knows what will happen regarding numbers in the wake of Title 42.
What we do know is that the largest number of border patrol encounters in 20 years happened while Title 42 was in place. We also know that Title 42 did nothing to protect people in the US from COVID - though honestly, that was never the goal anyway. So, Title 42 had no public health value, and was pretty clearly a massive failure as a deterrent to migration. Other than making life very hard for refugees, it is not clear that it did anything. So, of course, elected officials are falling all over each other to keep it in place, because why? Perception. Title 42 has, from the beginning, been a political posture more than a serious policy. It continues to be.
Reality check: While we think that the end of Title 42 is something to be celebrated (not feared!), a return to “normal” is not such a great prize. We have to remember that border policies prior to Title 42 were also a disgraceful mess, and much of that remains in place. Far from the open border bonanza Republicans are shouting about and some Democrats seem to be scared of (the framing at least), even with the end of Title 42 the border will remain locked down in many ways.
Below are some of the obstacles to achieving a humane border policy that remain.
“Remain in Mexico” - The Trump administration implemented the so-called Migrant Protection Protocols in 2019. Under MPP people seeking asylum were forced to wait in Mexico for asylum hearings. When those hearings came, they took place in hastily constructed “tent” courts, with immigration judges participating via remote video link. Less than 1% of people enrolled were ever granted asylum in this process. Meanwhile, thousands were subjected to violence in refugee camps that grew up all along the border in Mexico.
The Biden Administration ended the program, but then re-started it following a lawsuit initiated by the State of Texas demanding its reimplementation. In re-launching the program Biden claimed his hands were tied. However, the administration actually broadened the potential reach. Enrollments have been low thus far, but with the end to Title 42, Remain in Mexico enrollments could expand rapidly.
Also, the fact that the Texas lawsuit was successful in forcing the administration's hand on Remain in Mexico also means that a similar lawsuit requiring the re-implementation of Title 42 could succeed.
Immigrant Detention - Prior to the implementation of Title 42, immigrant detention had grown to historic levels, reaching a daily average in excess of 50,000 people by the end of FY 2019. As summary expulsions became the rule under Title 42, detention numbers fell dramatically - reaching a low of 13,941 in March of 2021 (though the private companies still got paid hundreds of millions of dollars as the result of mandatory minimums written into their contracts!). The end of Title 42 means that immigrant detention will increase. Indeed, detention has already increased since Biden took office, even if it remains well below the historic levels of the Trump administration.
In the Department of Homeland Security's FY 2022 budget, the administration sought, and received, funding to hold a daily average of 34,000 people in ICE detention - the majority of such detention being in privately run facilities.
The administration has also budgeted more money for “alternatives to detention.” What this means in the current context, however, is expanded use of ankle monitoring, a form of detention currently impacting 200,000 people. A recent report details the widespread physical and mental harms experienced by people placed in this program.
Federal prison - The Biden administration has made clear that it will prosecute anyone who can be charged for irregular re-entry. DHS writes, “Any single adult apprehended along the Southwest Border a second time, after having previously been apprehended and removed under Title 8, is referred for criminal prosecution.” Under current law, irregular entry is a misdemeanor and irregular re-entry is a felony.
Immigrants held in federal prison are not typically included in discussion of immigrant detention, which is supposed to be an administrative form of incarceration. The Prison Policy Institute, which tracks all forms of incarceration, shows at least 16,000 people detained by Federal Marshals and another 6,000 people currently incarcerated by Federal Bureau of Prisons for immigration law violations - almost all have been charged with either irregular entry or re-entry. At the moment, there are more immigrants in Marshall Service and FOB custody than being held by ICE - and this is a number that will surely increase if a zero-tolerance approach for re-entry is maintained in the wake of Title 42 suspension.
Expedited removal - The Biden administration has issued new rules governing asylum processing that empower asylum officers to make rapid decisions on asylum claims. The core of the new rules is expanded use of expedited removal with the goal of making asylum decisions within 90 days of encounter. Appeal of a denied asylum claim is still allowed, however, that process is also to be expedited with the goal of clearing those cases within 90 days. Expedited removal has long been criticized because asylum seekers do not have time to secure representation and build a case. SImply retrieving the required documentation from home countries, for example, can take months. While the current system, which can leave people in limbo for years, clearly needs reform, the guiding principle should be fairness, not speed.
Militarized border- The US/Mexico border is highly militarized, with physical border barriers (fencing and walls) covering large portions of it and thousands of agents patrolling it. Where there are no walls, fences, or armed patrols, there are deserts. The barriers built in the 1990s aimed to either keep people out, or force them to cross through deserts as a deterrent. Since the Clinton administration launched this "prevention through deterrence" program in the late 1990s, at least 7,000 people have died in those deserts - probably many more.
Once one crosses the border, there are scores of checkpoints, and police are given expanded authority to search and detain people. The dragnet also impacts thousands of US citizens who are delayed, questioned, and have vehicles searched daily.
Biden is not changing any of this. His administration is adding 300 border patrol agents and budgeted $435.4 million for technologies ranging from drones and surveillance towers to facial recognition. Reportedly the administration is also looking to utilize robotic dogs. Seriously.
Taking action for a humane border policy
First, we must end Title 42. It is an abhorrent policy. There are many alternative border measures that can be put into place that would actually enhance public health (Congress just received a list of them on Wednesday). Targeting people seeking asylum for immediate expulsion clearly does not. Whatever Biden and the CDC have said, Title 42 is still the law of the land. Indeed, the 400+ Haitians expelled just this week are evidence of its ongoing terrible toll on refugees.
Contact your Senator and tell them to vote against any effort to keep Title 42 in place.
Second, expanding the capacity to process asylum claims is a good thing - but the process must be fair, and not just a work around to expel people more quickly. Again, people have made multiple proposals for how to do this!
Thirdly, immigrant detention must end and be replaced with community support programs. In place of ICE detention and ankle monitoring, “there already are trusted and capable community-based organizations ready to provide services and support to address the needs of those individuals.” Redirecting funding from detention to community support would save hundreds of millions of dollars each year and actually be more effective.