This past November Judge Emmet G. Sullivan found the enforcement of Title 42 is in violation of several laws and announced the policy’s termination by Dec. 21st of this year. Title 42 was found to lack proper justification from the Center for Disease Control and Prevention (CDC) to merit its implementation, and that its current use was arbitrary and unstructured.
To recap, Title 42 is a health policy, not an immigration policy, that was enacted almost 3 years ago under the Trump Administration at the start of the COVID-19 pandemic. The policy is supposed to be used as an extreme measure to prevent the spread of dangerous diseases to the US, however, it has been in effect long after the US dropped most of its other pandemic era policies. Title 42 allows the immediate removal of migrants from the US regardless of their status as a refugee or asylum seeker. Migrant advocates and experts claimed the policy is a scapegoat that allows the US to avoid dealing with immigration and violates international human rights laws by sending those with plausible claims for asylum back to dangerous situations. The policy has since been used to eject nearly 2.5 million migrants from the US so far.
Title 42 is enforced in two ways: “turn backs” and expulsions. “Turn backs” refer to preventing migrants from crossing onto US soil at ports of entry and are used indiscriminately, except for a few exceptions for extreme health situations and unaccompanied minors. Expulsions refers to migrants who have already crossed into the US and have either surrendered themselves to or been detained by US authorities. These migrants could receive exemptions based on nationality, for instance Ukrainians and for a time Venezuelans were permitted to stay in the US. The rules surrounding the policy were constantly changing causing a great deal of confusion for immigration lawyers, advocates and the Department of Homeland Security (DHS) officials alike.
As of March of 2022 Title 42 has been in legal limbo since the Biden administration attempted to end the policy, but was stopped by U.S. District Judge Robert R. Summerhays from Louisiana, who issued a preliminary injunction under claims that the termination of the program was done so in violation of standard processes. The most recent decision by Judge Sullivan should lead to the program’s termination, however, DHS has already stated that they will repeal the decision, once again sending Title 42’s fate back to the courts.
While there is constant change of immigration policies in our current immigration system, what does the end of Title 42 actually mean for migrants and border communities? In the Rio Grande Valley, various humanitarian aid organizations operating in the border cities of Brownsville and McAllen are awaiting further guidance on how DHS will handle the end of Title 42. Some organizations are expecting to see a rise in the number of asylum seekers they serve as in the past they have seen numbers fluctuate in accordance with policy changes. The current administration has stated it expects to see an “influx” in the number of migrants seeking asylum at ports of entry once Title 42 is lifted. Indeed, with the uncertainty of how the policy changes will be handled, many asylum seekers are waiting in Mexico for the end of Title 42 to turn themselves in at points of entry, some even sleeping on the streets of Mexico near the border.
Immigration Courts in the Rio Grande Valley are also further awaiting to see what the end of Title 42 means for them as they may expect to see a rise in docket numbers in an already backlogged system as frequently monitored by TRAC. Legal providers in the area are potentially expecting a rise in the number of cases they will take on as wellI. In any case, how the United States government handles the end of Title 42 is highly anticipated by all those involved including– asylum seekers, on the ground humanitarian aid organizations, legal providers, and governmental agencies– all ensnared in the complex web of our current immigration system.
In light of these policy changes, there are different ways in which the United States government may handle the flow of migrants at points of entry. For one, it could mean that there will be a potential to return to standard immigration processing since seeking asylum at ports of entry is, after all, a legal human right. However, it may also be an opportunity for Title 42 to be morphed into a new way of continuing to detain or deny people from seeking the right to claim asylum. This may mean more aggressive expedited removal or so called “rocket dockets” and the criminal prosecution of adults. On a brighter note, this may be an opportunity for this administration to implement new solutions that restore the dignity of processing asylum seekers and restore the right to seek asylum.
Amidst all of these possibilities, the only thing that remains certain is the uncertainty that comes along with fast paced changes, as now DHS has announced it will appeal Judge Sullivan’s ruling to end Title 42 practices. As such, the fate of many asylum seekers may be in the hands of further court rulings potentially leaving many in Mexico in a continued state of limbo until the courts resolve the matter. The constant policy changes without effective communication from the government of how changes will take place on the ground for asylum seekers may be a source of confusion and allow for the danger of misinformation. To prevent such confusion, it is in the best interest of the government agencies involved to educate and inform asylum seekers and humanitarian aid organizations of how changes will take place. We can all hope and pray for a Christmas miracle, but the reality is that this administration needs to have a plan in place to effectively and humanely process asylum seekers on their journey as it is a right to seek asylum at ports of entry under current U.S. and international laws.
By: Fabi Olvera Benitez and Bobby Watson