By Philip Collins, US-based Immigration Attorney & Human Right/Migration/Refugee Law Researcher

On November 16, 2022, a US Federal District Court Judge ruled against the Department of Homeland Security’s use of ‘Title 42’ as a way of expelling migrants arriving at US borders in large numbers. This ruling set off a series of procedural events and appeals that eventually culminated in the Supreme Court placing the decision on hold over a month later in order to allow the matter to be fully briefed by the opposing parties and presented before the Court. Despite the temporary stay, there is now a strong likelihood that Title 42’s use as an immigration prevention measure will be nullified by the summer of 2023. The policy, which was enacted by the Trump administration in April 2020 as a dubious COVID-19 emergency public health measure, immediately invoked controversy as immigration advocates saw it as a backhanded and disingenuous means of drastically limiting asylum claims.

The regulation empowers the US Surgeon General with the Centers for Disease Control and Prevention (‘CDC’) to ‘prohibit… the introduction of persons and property from such countries or places as he shall designate in order to avert [introduction of a communicable disease], and for such period of time as he may deem necessary for such purpose.’ As implemented, however, Title 42 has effectively disallowed most asylum-seekers from claiming asylum at US ports of entry or along the US-Mexico border, as has been the normal practice for decades. Thousands upon thousands of asylum-seeking migrants from Central America, Haiti, Cuba, Venezuela, Ukraine and elsewhere have been routinely denied their chances of having their claims heard under the guise of a public health emergency. This closed door has then led asylum-seeking migrants to find alternate ways of entering the US, often using the services of human smugglers known as “coyotes” who guide immigrants into the US at areas of the US border where it is hoped they will not be caught. Many are, however – and when they are, whether attempting to claim asylum or not, Title 42 expeditiously bars their claims from being heard and forces these migrants and their families back to Mexico.

The policy has been derided for its similarity to the Trump administration’s ‘Migrant Protection Protocols’, otherwise known as the ‘Remain in Mexico’ program, which singlehandedly uprooted the southern border’s established policies and procedures for handling asylum claims. ‘Remain in Mexico’ effectively externalized or pushed back the claims of thousands of asylum-seekers by requiring them to wait in Mexico for their immigration court hearing date. Thousands were left with the impossible choice of either waiting several months or more for their hearing date in makeshift border camps –exposing them to violent crime, drug cartels, kidnapping, and disease– or returning to the dangers of their home country. After a protracted legal battle, ‘Remain in Mexico’ ended in June of 2022, though by then it had already been effectively replaced by Title 42.

Despite its initial controversy, Title 42 quickly exited the public eye in the flurry of events relating to the COVID-19 pandemic and the 2020 election year. But after more than two years of operation, one failed attempt by the CDC to end the program, and a change in presidential administration, the program has remained steadily in effect. Even when the US Federal District Court Judge ruled in November that its implementation was “arbitrary and capricious” as its operation was no longer even remotely related to a public health emergency, the US Supreme Court has put the ruling on hold temporarily in order to allow opposing parties (mostly Republican majority states) to file an appeal. Although the program is likely to be ultimately invalidated, the appeals process is expected to take months until a final ruling has been established by the Supreme Court, extending Title 42 well into 2023 and perhaps beyond. In the interim, President Biden has opted to open up humanitarian pathways into the US for certain migrants while also expanding Title 42 expulsions to others.

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The gravity of the decision to end Title 42, should it ultimately happen, can be difficult to put into context in the American mind. This is especially so because the program has been presented by politicians as a measure of preventing an ‘invasion’ of migrants to US borders, and that any attempt to take it away would cause an influx of illegal border crossings. This has unfortunately obscured the actual effects of the policy for the sake of convenient political posturing during the 2022 midterm election year and beyond. In reality, asylum-seeking migrants have unduly suffered under the program because they have effectively lost all ability to present their claims for asylum. Put more succinctly, Title 42 acts as a large-scale pushback measure that has been applied indiscriminately at the US-Mexico border, putting access to asylum on the chopping block for thousands upon thousands of migrants.

Additionally, Title 42 has followed in the footsteps of the ‘Remain in Mexico’ program’s flagrant violation of the 1951 Refugee Convention’s ‘non-refoulement’ principle by sending many of the asylum-seekers directly back into danger. Unable to enter the US, they are left with few options: either they somehow find their way back to the persecution they endured in their home country or they wait indefinitely in Mexico for an opportunity to claim asylum in the US while facing health hazards and other serious dangers in ad hoc migrant encampments in Mexico. Many of these asylum-seekers naturally decide that an attempted re-entry into the US is their best option. Though they may risk being pushed back yet again, they are left with few options but to cross the US-Mexico border at their peril until they are let in or can cross undetected. In doing so, they often line the pockets of coyotes and cartels, with many having needlessly died in the process.

Seen in this way, it’s clear that Title 42 doesn’t work as a policy objective, since it has exacerbated the very problems that it has purportedly been implemented to prevent. Border apprehensions have risen much higher than in previous years as a natural result of asylum-seekers losing their ability to have their claims heard, and these re-entry numbers feed right back into the “invasion” myth, since each recorded border encounter is often disingenuously presented as a separate individual with many more being presumed to have made it into the US.

Graph courtesy of the American Immigration Council

Advocates of a more sensible immigration system, therefore, would do well to welcome the cessation of the program, since it would mean both the reestablishment of traditional intake procedures for migrants at the border and the return to a basic fulfillment of the US’s essential obligations under the Refugee Convention. But confoundingly, there has been little discussion among US politicians and lawmakers of ensuring the rights of migrants to seek asylum and to be protected against refoulement, despite these being the enduring, core principles of the Refugee Convention. Instead, immigration restrictionists have reached into their bag of escalating tricks at the border in order to gain political clout and be seen as ‘tough on illegal immigration.’

The absence of these principles in US policy, or even the general discussion and awareness of them, has been a troubling trend in recent years. For many asylum and refugee advocates, the litany of the Trump administration’s changes to immigration law and policy through the years 2017-2020 were seen as a severe departure from the principles of Refugee Convention, especially where it is codified in the US Immigration and Nationality Act. Additionally, some of the more egregious human rights violations occurred during this period of intense immigration restrictionism, violating not only the Refugee Convention and other international human rights obligations the US has undertaken to uphold, but also standing out as a stark violation of the nation’s social and moral conscience.

Even the Biden administration, generally seen as pro-immigrant, has frustratingly languished in its response to the copious immigration reforms enacted by the Trump administration, implementing only reluctant, incremental changes that almost appear to affirm the departure from Convention principles. Moreover, the language used by the Biden administration has largely failed to invoke a sense of international unity and purpose in relation to refugees and asylum-seekers. While this may be a calculated political response to the fever-pitched outcry against ‘open borders’ in an election year and beyond, the absence of a principled approach guided by the Refugee Convention has been unfortunately and increasingly normalized in 21st century American politics. And so it has been around the world where a “social consensus in favour of pushbacks can emerge even in countries which ratified the convention a long time ago.”

So while there may be a potential short-term victory in the ending of Title 42, the rising, bold resistance to all forms of migration has certainly impacted what the future of immigration law and policy will become in the US. If even a pro-immigrant disposition, along with the advocacy for the return to a functioning asylum system, can be viewed as a political liability for many politicians (especially in a fast-approaching 2024 election year), the principles of the Refugee Convention will grow more and more distant as Congress fails to act and immigration policies continue to be built upon the shaky sands of executive and administrative orders. In the midst of all the chaos, if the US is somehow still committed to its Convention obligations, asylum-seekers will need to be treated as less of a political chess piece and seen once again as human beings seeking safety from the oppression they face back home.

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