Title 42 anniversary marks headaches for Biden, stalemate with lawmakers

As the Biden administration oversees the two-year anniversary of Title 42, it has given little sign it intends to lift the Trump-era policy that cites the pandemic as a reason to summarily expel asylum-seekers, even amid increasing pressure from members of its own party.

The expulsion policy — issued just days after COVID-19 began taking its grip on the U.S. — has driven a wedge between the Biden administration and immigrant communities, many of whom see its continued implementation as a broken campaign promise.

“Every day that this policy is in effect, it actually endangers human lives, harms public health, bolsters racist tropes and damages the CDC’s [Centers for Disease Control and Prevention] credibility and the administration’s credibility. It also violates U.S. and international law,” Eleanor Acer, director of refugee protection with Human Rights First, told The Hill.

“Every day the policy stays in place, people seeking refuge are turned back to life-threatening dangers. And that’s really on the Biden administration at this point,” she added. 

Its unpopularity is due both to its real-world consequences — including the expulsion of more than 20,000 Haitians counted among the more then 1.7 million migrants denied the right to claim asylum — and to its origins as a Trump administration policy.

Many immigration advocates have denounced Title 42 as a maneuver to leverage the pandemic to implement harsh limitations on asylum protections that the Trump administration had unsuccessfully sought.

A recent Freedom of Information Act request by American Oversight found that Trump immigration policy architect Stephen Miller was at least a guiding force in involving the CDC to implement the order.

Both the Trump and Biden administrations have said Title 42 is necessary to prevent spread of the coronavirus, an argument met with a fair share of skepticism by most advocates.

The policy was first criticized as the coronavirus pandemic moved north to south, with few initial hot spots within Mexico.

And the continued implementation of Title 42 has been transparently delinked from coronavirus protections — many Haitians are kept in U.S. custody for longer than the CDC-recommended quarantine periods before their expulsion to Haiti, making moot any claims of sanitary protections.

Still, Homeland Security Secretary Alejandro Mayorkas has repeatedly stated that Title 42 will remain in effect to protect from the coronavirus until the CDC lifts the order.

Courts have also recently given conflicting guidance on Title 42, with one Texas-based federal judge ordering an expansion of the policy to include children traveling alone, while the D.C. Circuit Court of Appeals ordered new limitations on applying the policy to families and questioned its continuation as the globe makes strides toward managing the virus.

In response, the CDC on Saturday lifted Title 42 for unaccompanied children, “in recognition of the unique vulnerabilities of unaccompanied noncitizen children.”

The same order also notes that CDC’s broader Title 42 order is under review until March 30 — when many are hopeful the agency will scrap the policy, concluding the same public health logic for stripping the policy for unaccompanied children will be applied to adults and families.

The modest tweak continued to strain President Biden’s relationships with his closest allies in Congress. Senate Majority Leader Charles Schumer (D-N.Y.), Sen. Bob Menendez (D-N.J.) and two other senators on Saturday wrote the administration was “wrong” to continue using Title 42 more broadly, adding that Biden should “stop breathing new life into this inhumane Trump policy.”

Title 42 has also skewed apprehension numbers at the U.S.-Mexico border as migrants returned to Mexico — primarily Mexican nationals but also some from Central American countries — have few disincentives to attempt to cross again, leading to recidivism.

Administration officials told Axios this week that part of the hesitancy to lift Title 42 was fear of a “massive influx” of immigrants if the restriction were suddenly lifted.

While there is almost certainly some pent-up demand given the restrictions on asylum-seekers under Title 42, the policy has inflated border crossing numbers because it incentivizes recidivism, and illicit clandestine crossings have in practice become less onerous than licit asylum claims.

Mayorkas said Thursday that the Department of Homeland Security (DHS) is “empowering asylum officers who are expert in the adjudication of claims for humanitarian relief” as part of its preparations for a potential drawdown of Title 42, an indication that a post-Title 42 border could favor asylum claims at ports of entry over clandestine crossings.

Title 42 has also been implemented preferentially, with migrants of certain nationalities exempted or quickly released across the border, while others are detained to be repatriated on DHS flights.

Some Ukrainian nationals who’ve attempted to enter the United States through ports of entry on the Mexican border have been granted waivers from Title 42, while nationals of other countries in humanitarian distress are made subject to summary expulsions.

“I think the footage that we are seeing from Ukraine so powerfully demonstrates the reason why the urgency with which we moved is appropriate. We are seeing the bombing of major cities, we are seeing the destruction of hospitals, of centers where children are housed, and we met, we met the moment with the speed that we thought it deserved,” Mayorkas told reporters on a call Thursday.

While DHS’s quick response to the humanitarian crisis brought about by the Russian invasion of Ukraine has been lauded by Democrats and immigrant advocates alike, it’s raised questions of double standards.

“Recently, on March 3, Immigration and Customs Enforcement suspended deportation flights to Ukraine in response to the ‘ongoing humanitarian crisis’ there — a justified and important exercise of your enforcement discretion,” wrote Democratic Reps. Mondaire Jones (N.Y.) and Ayanna Pressley (Mass.) in a letter to Mayorkas and CDC Director Rochelle Walensky on Wednesday. “There is every reason to extend that same level of compassion and exercise that same discretion to suspend deportations to Haiti — and, in light of your own findings about the ongoing humanitarian crisis there, no excuse not to.”

The Haitian case has been especially poignant as DHS has implemented significant logistical resources to conduct a policy of mass expulsions under Title 42 to a country that’s undergoing well-documented political, economic and humanitarian crises.

The Biden administration has so far sent 210 deportation and expulsion flights to Haiti, repatriating about 20,800 Haitians — more than the previous three presidents combined.

Most of the repatriations have taken place after the Biden administration designated Haiti for temporary protected status, adding nearly 100,000 Haitians already in the United States to the humanitarian protection program and explicitly recognizing the gravity of conditions in the Caribbean nation.

The policy has also baffled political observers, who see the Biden administration alienating immigrant, Hispanic and Black constituencies ahead of a difficult midterm election.

“It’s hard to fathom what reason the administration actually thinks would be helpful for continuing it. To the extent that someone in the administration thinks this order is somehow helpful to them in responding to fear mongering about the border — that’s a total political miscalculation,” Acer said.

“The Biden administration needs a principled response to the racist, xenophobic rhetoric that is being pushed about the border. Leaning into that fear mongering and rewarding its proponents is exactly the wrong approach,” Acer added. 

And the continued implementation of Title 42 has brought on international criticism as the United States strives to be seen as a democratic and humanitarian global leader in the face of Russian aggression.

The policy’s two-year anniversary, marked this Sunday, earned a renewed rebuke from the United Nations High Commissioner for Refugees.

“It’s been 2 years since the U.S. put in place its Title 42 public health order to restrict access at its borders. The U.S. has since carried out 1.7+ million expulsions, denying people the right to request asylum. The devastating impact has put lives in danger,” the agency tweeted Friday.

“For 2 years, vulnerable families fleeing violent gangs and human rights abuses have been summarily sent back to Mexico or their countries under Title 42,” it continued.

“Wherever refugees come from and wherever they seek protection, their asylum claims must be heard,” it said.