Under the guise of containing the spread of COVID-19, the policy known as Title 42 has resulted in the summary expulsion of thousands of asylum seekers and has become a centerpiece of U.S. border policy since 2020. The policy is a failure from every angle. Denounced by public health experts, immigration, and human rights advocates alike, it continues to inflict immeasurable harm on vulnerable people seeking safety. By foreclosing legal pathways to people seeking asylum, it has produced record levels of “recidivism” – repeat, irregular crossings – among migrants who have no option but to attempt entry without inspection. Though the Biden administration finally acknowledged the need to end Title 42, they dragged their feet for too long, and have not fought hard enough to stop the deadly expulsion from continuing, relying on specious public health justification when convenient and on baseless border control rationale when politically helpful. Both excuses have been debunked. Now, we must contend with the resulting humanitarian disaster, and the Biden administration must do more to defend and implement its decision to finally end Title 42.
Despite Legal Challenges, Unlawful Expulsions Continue
Since March 2020, the land borders to Mexico and Canada have been effectively closed to asylum seekers under an obscure 1893 public health law now known as Title 42. Senior White House officials under former President Donald Trump such as Stephen Miller seized upon the provision to bypass asylum laws and summarily expel noncitizens without any of the protections guaranteed by Congress. In claiming this never-before invoked authority, the Trump administration imposed Title 42 over the objections of public health experts within the Centers for Disease Control and Prevention (CDC) who rejected the expulsion of noncitizens as unnecessary and ineffective at containing the spread of COVID-19. And despite scientific advances in preventing and treating COVID-19, border officials have continued applying Title 42, making thousands of expulsions each month over the span of two years—with over 75 percent of expulsions under the Biden administration.
For nearly as long, Title 42 has been the center of multiple legal challenges. In the first bucket of challenges starting summer of 2020, unaccompanied noncitizen children sued the federal government to stop their expulsions. In November 2020, a district court enjoined Title 42 as applied to unaccompanied children and, weeks after the Biden administration took office, the CDC voluntarily exempted unaccompanied children from Title 42. Over several orders in 2021, the CDC explained how there were sufficient “measures in place to prevent and mitigate transmission of COVID-19 in this population,” including vaccination, testing, masking, and other protocols.
Even though these considerations could have been equally applied to families and single adults, from 2020 to 2022, the CDC continued Title 42 as to those groups, citing DHS’s failure to invest in adequate mitigation protocols in CBP facilities. As a result, the American Civil Liberties Union (ACLU) along with other advocacy groups sought and won an injunction in district court in September 2021, preventing the government from expelling families with children under Title 42. But the Biden administration not only appealed this decision, it also successfully argued for a stay on the injunction, thereby continuing to send families back to danger. On March 4, 2022, over the Biden administration’s objections, the D.C. Circuit unanimously held that Title 42 may not be used to send families back to persecution or torture.
The decision in the Huisha-Huisha case (a matter in which the authors are co-counsel) is critical for two reasons. First, it unequivocally holds that Title 42 cannot trump all immigration laws guaranteeing access to humanitarian protections. Thus, it was unlawful for the government to expel people without first ensuring they will not be returned to persecution or torture (as required under other immigration statutes). Second, the court cast grave doubt on the policy’s public health justification, calling Title 42 “a relic from an era with no vaccines, scare testing, few therapeutics, and little certainty.”
Seeing the writing on the wall, the CDC, at long last, announced the end of Title 42 in spring of 2022. On April 1, the CDC recognized that Title 42 “is no longer necessary” to protect public health and announced its termination as to all noncitizens, including families and single adults, starting May 23. But, as with the Biden administration’s attempts to end the Remain in Mexico policy and realign enforcement priorities, states including Texas, Arizona, and Louisiana interjected themselves into immigration policymaking for the nation. Notwithstanding the changing course of the pandemic and their own dubious track record with COVID-19 mitigation measures, these states have lobbed lawsuit after lawsuit against the Biden administration’s attempts at terminating Title 42 and other border policy changes. On May 20, just days before Title 42 was set to expire, a district judge in Louisiana issued a preliminary injunction, accepting the argument of Louisiana and 23 other states that they would be harmed by ending the policy. Even though the Biden administration immediately appealed the decision, they did not seek a stay of the decision from either the district court or the Fifth Circuit.
The litigation from conservative-led states over Title 42 – which has consistently highlighted immigration-related concerns, not public health ones – reveals what should have been evident all along: Title 42 was never about COVID-19 or public health, and it is now being openly embraced as a border control policy. As a result, the Biden administration is now forced, under court order, to expel thousands per month back to harm, in violation of these individuals’ rights to seek safety in the United States.
Title 42 Ended Asylum Access at the Border, Created a Humanitarian Crisis
Taking a step back from the ongoing legal battles, the impact of Title 42 on access to asylum protections and conditions on the ground at the U.S.-Mexico border has been catastrophic. By instituting the Title 42 expulsion policy, the Trump administration co-opted the COVID-19 pandemic to achieve its long held goal of ending access to asylum at the border. Despite promises to restore the asylum system, the Biden administration continued Title 42 and summarily expelled more people than President Trump’s administration did before seeking to end the policy. Under both administrations, the expulsion policy has driven up apprehension numbers and inflicted immeasurable harm on vulnerable people seeking safety.
As evident throughout the pandemic, Title 42 has done little or nothing to mitigate the spread of the coronavirus. Leading epidemiologists, former CDC officials, and other public health experts have consistently pointed out that Title 42 ignores the science. Instead of implementing mitigation measures sufficient to protect the public and migrants, the Trump and Biden administrations have opted for unnecessary and inhumane summary expulsions in ways that were counter to public health – including subjecting individuals to detention and lateral flights from one part of the border to another before they are expelled.
There is, of course, no evidence that arriving asylum seekers pose a greater public health risk than the over 15 million pedestrians and personal vehicles crossing the U.S.-Mexico border each month. People subjected to Title 42 constitute far less than one percent of all border crossings and, as Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, has made clear, immigrants are “absolutely not” driving the spread of COVID-19 in the United States and expelling them “is not a solution.”
Instead of serving any public health purpose, Title 42 has placed millions in harm’s way and at risk of persecution. In fact, Title 42 functionally included no screening mechanism to ensure people were not returned to persecution or torture – not even the cursory screening procedures that were supposedly implemented under the policy. According to reporting from CBS News, prior to May 2022, only a reported 0.28 percent of those expelled received the wholly inadequate torture screening that was nominally mandated in the original Title 42 policy. It remains to be seen if recently implemented court mandated screenings for families provide meaningful protection against return to danger.
Such guardrails are necessary because migrants, including families and children, experience kidnapping, torture, rape and other violent attacks following expulsions to Mexico. Over 10,000 such incidents have been documented by nongovernmental organizations under the Biden administration alone. Those cases include LGBTQ asylum seekers exposed to sexual violence and the abduction and torture of a pregnant woman from Nicaragua, causing her to lose her baby.
Beyond expulsions into Mexican border towns where migrants are targeted for violence and extortion, the administration has used Title 42 to return potential refugees directly to the countries from which they fled, including to El Salvador, Guatemala, Haiti, Honduras, and Mexico. They have even expelled some Venezuelans to Colombia. Such expulsions blatantly violate refugee law, exposing those with even the most clear-cut asylum claims directly to the persecution from which they have a right to be protected under U.S. and international law.
Expulsions directly to migrants’ home countries have disproportionately targeted Haitian and other Black asylum seekers. Since taking office, the Biden administration has forced Haitians onto at least 266 flights back to Haiti, removing around 26,100 individuals, including families. A staggering 1 in 435 people in all of Haiti are there following deportation from the United States since Biden took office, mostly via Title 42 expulsions. In September 2021, the Biden administration undertook an extensive expulsion effort of Haitians back to Haiti, including dispatching border officers on horseback to forcibly round up migrants and clear camps in Del Rio, Texas. The roundup drew resounding international condemnation for both the actions of border agents and because of the risk that the returns exposed thousands of Haitians to further danger and persecution in Haiti. The Congressional Black Caucus, among others, have specifically demanded an end to Title 42 expulsions to Haiti. In stark contrast to the Biden administration’s treatment of Black and Brown refugees, when thousands of Ukrainians recently arrived at the border in Tijuana, the Biden administration funneled resources to quickly and efficiently process them into the United States without subjecting them to Title 42. This processing included the creation of a separate parole process.
Beyond its inherent risks and the apparent inconsistency in its application, Title 42 has artificially elevated border apprehensions numbers, distorting perceptions of the situation at the border. In Fiscal Year 2021 one-third of all apprehended individuals had previously crossed and been expelled. These totals include some asylum seekers who, in desperate need of immediate safety, are attempting multiple crossings in hopes their plea for protection will be heard. By quickly expelling migrants across the border to Mexico, Title 42 is a boon for cartels, who take advantage of stranded migrants for kidnapping, extortion, and extraction of additional money for multiple crossing attempts. Title 42 also encourages smugglers to attempt to avoid apprehensions through more dangerous crossing routes and evading arrests. Between 2019 and 2022 for example, fatalities resulting from Border Patrol vehicle pursuits increased 11-fold. Prior to Title 42, most “apprehensions” involved vulnerable asylum-seeking families and children voluntarily seeking out border officials for processing, rather than fleeing – and putting themselves in danger – to avoid immediate expulsion. But under Title 42, asylum seekers have no access to ports of entry and are pushed to cross between ports, increasing the dangers they face and feeding the political narrative of disorder at the border.
Finally, Title 42 has been shown to put parents in the impossible situation of choosing their children’s safety over remaining together. Because unaccompanied children are not subject to expulsions, many families have been compelled to send their children across the border alone to get them out of harm’s way (including the risks they face in Mexico) and spare them from expulsion, leaving caregivers behind. In other words, Title 42 has functionally forced family separations onto asylum seekers.
Title 42 Can and Must End
This article is not the first and will be far from the last to critique Title 42 as a policy. But at this juncture – after over two years of shutting down asylum at the border – it should be evident how much of a failure Title 42 has been: It has not contained the pandemic or served the public, nor has it addressed the factors driving people to seek shelter in the United States. The policy’s only benefit is to politicians who instrumentalize the perceived chaos at the border to score political points ahead of this year’s midterm elections. But to accept this framing would mean abandoning any commitment to science, asylum, the rule of law, and good governance. Title 42 is a failure, and the Biden administration can and must do better by continuing to defend its rescission – in the media, Congress, and the courts – and by ensuring people are not expelled to persecution or torture.
The next few months will prove critical as litigation plays out: the Biden administration must simultaneously defend its rescission of Title 42 before the Fifth Circuit, push ahead with ending Title 42 through formal notice and comment procedures, and comply with the Huisha-Huisha decision not to expel people without proper humanitarian screenings. The Biden administration will need to be aggressive on all these fronts in order to prove its commitment to restoring asylum at the border.