The land border with Mexico is open again, but people still can’t really seek asylum

Title 42 remains in place despite promises for a more humane policy

November 23, 2021 5:00 am

Children play in the makeshift shelter camps for Central American migrants while awaiting the U.S. authorities to allow them to enter to begin their process of asylum into the country, on March 26, 2021 in Tijuana, Mexico. (Photo by Francisco Vega / Getty Images)

Nov. 8 was a big day for love in the U.S. borderlands. For the first time since March of 2020, the U.S. land border opened to non-essential travel. This meant that fully vaccinated foreign travelers could enter the United States and, for many people who rely on tourist visas to see their loved ones who live in the U.S., it meant that families could finally reunite after a long pandemic. Opening the border to vaccinated travelers is an important milestone of COVID-19 loosening its grip and a return to normal.

But it is still functionally impossible for someone at the U.S. border to ask for asylum. 

Despite lifting certain border restrictions, the Biden Administration remains committed to Title 42, and the public health order has allowed border agents to categorically expel migrants trying to enter the country without papers since the pandemic began. Since early 2020, the U.S. has executed over 1.7 million expulsions, and the whole situation stinks.

Human rights abuses at the border didn’t stop when Trump lost the presidency

It is critical to keep pointing out that there is nothing illegal about seeking asylum. I often get treated as if that is my opinion, as if illegality is an identity one can choose to assign or assign to another person because of politics. But the fact is, showing up at the U.S. border and entering for the purpose of asking for protection from persecution is an internationally defined right, and there is nothing under U.S. immigration law that prohibits it. 

Of course no one is entitled to a grant of asylum, but there are detailed federal regulations about how individuals must be processed and screened to see if they qualify. People who come seeking asylum are doing nothing illegal in asking, and arguably the U.S. is the one behaving illegally in turning them away.

The problem with Title 42 is that it was never really about public health. The Trump administration made no secret of their project to seal the U.S. border and destroy the right to seek asylum in our country. When Title 42 was imposed in March 2020 to ostensibly stop the spread of COVID, immigration advocates understood it to be pretextual.

Last week, the former CDC deputy director confirmed to Congress that this was indeed the case when she shared that the agency “did not support” former President Trump’s decision to close the border and that the move “wasn’t based on a public health assessment at the time.” 

It appears that advocates were right: Title 42 is nothing but a hard-lined immigration policy disguised as an effort to protect the health of a country by an administration that did everything it could to undermine public health measures during a global pandemic.

So why then — 10 months after the Biden administration took office vowing to restore humanity at the border — is Title 42 still in place? The answer is not complicated: they are simply as bad as Trump on this issue. President Biden is using Title 42 as a tool to restrict immigration and saying it is about public health, even as the vaccine becomes widely available. 

In fact, the Department of Homeland Security has shown a remarkable disdain for public health this year as they have repopulated Immigration and Customs Enforcement detention centers in spite of detainee numbers reaching a decades-long low at the end of the Trump administration — in large part due to the pandemic and the Title 42 border closure. Officials are likely hoping that the public will not interrogate the motivation of Title 42 and enjoy the fact that there are less “crises” at the border. So far this has been the case. 

Border travel limits will end, but Trump-era restrictions for migrants remain

The strategy of keeping asylum-seekers outside of a country so they do not have to be processed under refugee laws is called externalization. 

Externalization is a shirking of moral responsibility and causes human tragedy in the borderlands where it is practiced. That tragedy is everywhere. Just tune in to what is happening on the Polish-Belarusian border right now as one country positions thousands of refugees as pawns to leverage power against another that is willing to use violent force to keep them out. 

Six months ago, the United Nations’ High Commission on Refugees, called on the U.S. to end Title 42 and restore access to asylum for the people whose lives depend on it, in line with international legal and human rights obligations.” President Biden entered the White House on a promise to restore order and humanity to the Southern border after the chaos of the Trump years. He has not fulfilled that promise and, worse, by keeping Title 42 in place, what little moral authority the U.S. had left when it came to refugees has slipped away. 

As war, pandemic, and climate change are displacing millions of people worldwide, externalization has become a common tool of nations to avoid the inconvenience posed by the covenants they made to protect those fleeing persecution.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site.

Allegra Love
Allegra Love

Allegra Love is an immigration attorney from Santa Fe. She is a graduate of Dartmouth College and the University of New Mexico School of Law. She is the founder of and former director of Santa Fe Dreamers Project, a legal services organization serving immigrants and refugees. She also worked at the El Paso Immigration Collaborative to represent detained asylum seekers in the Southwest.