End of Title 42 a hard-won victory, but the work of creating a humane approach to migration remains

Policy caused the buildup of human lives at the southern U.S. border that will now be depicted as a crisis

November 18, 2022 4:02 am

Immigrants warm themselves by a fire before sunrise along the U.S.-Mexico border barrier as they await processing by the U.S. Border Patrol after crossing from Mexico on May 22, 2022 in Yuma, Arizona. Title 42, the controversial pandemic-era border policy enacted by former President Trump, which cites COVID-19 as the reason to rapidly expel asylum seekers at the U.S. border, was set to officially expire on May 23. A federal judge in Louisiana delivered a ruling May 20 blocking the Biden administration from lifting Title 42. (Photo by Mario Tama / Getty Images)

A Federal District Court judge in D.C. ordered the Department of Homeland Security to end the use of Title 42 at the U.S. border on Tuesday night.

Frustratingly, in spite of the fact that it has been in place for close to three years, Title 42 never got the attention it deserved as a devastating immigration policy on par with the most brutal in recent memory like family separation.

U.S. district court strikes down use of Title 42 to expel migrants

And while its end may not seize headlines for long, what happens next most definitely will.

Title 42 is a policy implemented by the Trump administration in April of 2020 that closed the U.S. border to people seeking asylum, claiming that it was a necessary step to stop the spread of COVID-19. At the time, the reasoning behind Title 42 was widely viewed as a pretense by public health officials and immigration advocates alike. This was because everywhere else, beyond the border, Trump was downplaying the pandemic.

It is also because the impact of policy squared exactly with the administration’s transparent goal to close the southern border. In an instant, people could no longer queue up at our country’s ports of entry to ask for refuge. Those that crossed between ports of entry and were apprehended could be swiftly expelled to Mexico or their home country without due process. It was Trumps’ big beautiful wall with no construction.

Whenever there is reporting about the border, Title 42 is almost categorically referred to as a Trump-era policy. While this is technically true, it has been embraced enthusiastically by the Biden team. Although Biden campaigned on a promise to end the use of Title 42 and even gave some early head fakes to lifting it after he took office, his administration has instead come to rely on it as a tool for border control. They have dropped the pretext of public health entirely.

It is remarkable that the conservative narrative is that Biden is for “open borders.” His administration carried out 1.7 million expulsions under Title 42 during his first 18 months in office, far more than his predecessor.

Title 42 is a repudiation of the international covenants that the U.S. agreed to as a signatory to the U.N. Refugee Convention and our own asylum law codified into U.S. law. It should be major news that our country treats our legal and moral duty to process asylum-seekers as optional. Yet there has been almost no political backlash or broad public attention to this policy. Though the impact it has had on millions of migrants is shocking, Title 42 effectively pushes people out of sight and sadly, in the case of our nation, out of mind.

U.S. opens arms for Ukrainian refugees while turning back others fleeing violence

For some people, most notably Haitians, Title 42 has meant being expelled directly back to their home countries and the extreme danger that they fled. For others, like Central Americans, it meant they were turned back into Mexico where enormous encampments have grown filled with people waiting for the border to re-open. There was an undeniable racial element to how the policy was enforced.

Some people were selectively exempt from Title 42, the most glaring exception being Ukrainians, who were allowed to line up and enter the country peacefully without threat of detention or expulsion.

So the judge’s ruling to end Title 42 comes as a bit of welcome news. He essentially concluded that the policy did not actually serve its stated public health purpose.

It is not yet clear how it will shake out on the border. In less than a day, the same judge granted the Biden administration’s request for a 5-week stay in order to prepare for the policy to end. It could very well be that before the end of the year, the U.S. border will once again be open to asylum-seekers after 32 months of Title 42.

This may seem like a reason to celebrate, as it is a victory of sorts. Title 42 was a terrible policy and should end, and many people worked long and hard to secure this ruling. But I, for one, do not feel victorious.

Yes, the right to seek asylum on the U.S. border may be restored, but the system we are restoring is deeply flawed, violent and dangerous.

Between 2014 and 2020, before Title 42 was even dreamed of as a possibility, I worked at the U.S. border and inside several ICE detention centers. In those years, I witnessed constant and savage violations of asylum-seekers’ human rights.

Take, for example, a video released yesterday by the Intercept. In 2019, an asylum-seeker detained in New Mexico, in Otero County, engaged in a hunger strike to protest his detention. He was placed in solitary confinement, and after 37 days, the government obtained a federal order to force feed him at a detention center in El Paso. Force-feeding someone against their will can rise to the level of torture.

Or take the 2019 death of Johana Medina Leon, a transgender asylum-seeker. Johana, a 25-year-old nurse, was also detained in Otero County. She was gravely ill and not receiving proper medical attention. She could not secure her release from detention, and her health deteriorated.

Records show that when the decision was finally made to transfer her to the hospital, ICE officials quickly processed her release request in several hours. Thus, when she died in an El Paso hospital a few days later, her then out-of-custody death would not automatically trigger an investigation.

Her daughters are U.S. citizens. Title 42 won’t let this Guatemalan mother enter the country.

These are two recent examples from right here in New Mexico of extraordinary violence and neglect brought upon the bodies of asylum-seekers. But there is so much to point to in the system: forced hysterectomies in a detention center; family separations; corporations profiting daily off of migrant detention; abuse at the hands of Border Patrol.

Our country’s plan when there are a great number of migrants at the border is to profit and punish. Nothing the Biden administration has done over the last two years makes me believe it will be different.

See, Title 42 was an opportunistic and temporary solution to the inconvenient fact that people migrate. Pushing great numbers of people away is far easier and politically safe than processing them.

Restoring the right to asylum will definitely help certain individuals who meet the narrow requirements to prove asylum, but there will be many people left out. Asylum does not help people who are moving because of climate change or because of an economy so collapsed they can’t feed their children. People move when they cannot live, and whether we like it or not, some of those displaced people are going to come to the U.S.

Some may question if it is our country’s responsibility to care for economic and climate refugees. I only then ask that they take a look at our country’s disproportionate impact on climate change against the countries from which people flee. I ask that they understand the impact of historical trade agreements or wars in the Americas or any U.S. capitalism and imperialism. Our country helps create untenable situations in other places and then smugly punishes people who must flee them.

The immediate aftermath of Title 42 will be no different. Because the border has been closed for nearly three years, when it opens there will be an enormous number of people who seek entry. This will be depicted as a crisis. And the crisis will be blamed on migrants, not on the poorly thought out policy that caused this buildup of human lives south of the border.

And, as our country has shown over and over, when we blame migrants, we treat them to all kinds of pain and suffering and neglect with the satisfaction that they were wrong to come, and that wrongness makes their bodies ours.

The Biden administration has five more weeks to figure out how to humanely reopen the U.S. border. I say five more weeks, because federal officials already had two years, and rather than plan with creativity and imagination and courage, they have kicked the Title 42 can down the road month after month.

Our job, as Americans, citizens and voters, is to hold our government accountable for more than abusing migrants in the name of crisis. Our leaders will find the resources to welcome migrants peacefully if they believe their jobs depend on it.


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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.