Biden rescinds controversial Title 42 order limiting asylum

The Biden administration on Friday rescinded Title 42, the Trump-era policy that allows for the rapid expulsion of migrants at the border and blocks them from seeking asylum.  

The move comes after years of pressure from within President Biden’s own party and frustration from immigration advocates who had pressed to end a policy they viewed as illegal and cruel to those fleeing persecution and danger.

The order from the Centers for Disease Control and Prevention (CDC) lifts Title 42 on May 23. 

“Based on the public health landscape, the current status of the COVID-19 pandemic, and the procedures in place for the processing of covered noncitizens … CDC has determined that a suspension of the right to introduce such covered noncitizens is no longer necessary to protect U.S. citizens,” the CDC wrote.

The White House noted earlier this week that even with the lifting of Title 42, most who cross the border will not be able to remain in the U.S.

“To be clear, most individuals who crossed the border without legal authorization will be promptly placed into removal proceedings and if they are unable to establish a legal basis to remain in the United States, they’ll be expeditiously removed,” White House communications director Kate Bedingfield said Thursday.

“As a reminder, economic need and flight from generalized violence is not a basis for asylum, but rather asylum is for those with a well-founded fear of persecution on a protected ground.” 

While crafted by the Trump administration just days into the pandemic, Title 42 has been used roughly 1.7 million times by the Biden administration, a figure that includes repeat crossers. 

Though Biden administration officials have consistently contended it was an important public health order needed to limit the spread of COVID-19 in border facilities, Title 42’s pandemic implementation has been shown to have political origins.

Trump White House adviser Stephen Miller led the charge to inject coronavirus protections into border management policy.

“I commend the Biden administration [for] taking this long overdue step to end the cruel Title 42 expulsion order. This racist, inhumane relic from the Trump era has been devastating for migrants fleeing persecution, war, poverty, climate catastrophe and violence in their home countries and who have been forced to seek asylum in the United States,” Rep. Cori Bush (D-Mo.) wrote in a statement, rehashing months of arguments from Democrats.

“It is a legal right and our moral obligation to open our doors to asylum seekers.” 

The planned withdrawal of Title 42 comes after a conflicting set of court decisions on the policy, one directing the administration to expand the policy by applying it to children traveling alone, while a separate court decision imposed new limits, prohibiting sending families subjected to Title 42 to places where they may face torture or persecution.

The second order criticized the Biden administration for sticking to its public health argument for Title 42 even as the world has made strides in learning to live with the pandemic.

In response, the CDC days later rescinded the policy for children and noted it would continue a broader review of the order through March 30.

Beyond the courts, Biden was facing considerable pressure from Democrats to rescind the policy.

“As the Centers for Disease Control and Prevention relaxes it domestic COVID-19 protocols, it is perplexing that the agency continues to recommend the extended use of this draconian policy at the border, contradicting the overwhelming signs of America’s pandemic recovery under President Biden’s leadership,” Senate Foreign Relations Committee Chairman Bob Menendez (D-N.J.) wrote in a letter earlier this month alongside Senate Majority Leader Charles Schumer (D-N.Y.).

“As we have clearly reminded President Biden, we have a moral imperative to live by our values.”

The Biden administration was also facing lawsuits by immigration and civil rights group that argued the administration was violating the law by blocking access to an asylum system meant to provide a safe haven for those fleeing torture and persecution.

“Title 42 was never justified by public health and has caused grave harm to thousands of asylum seekers over the past two years. It is regrettable that the Biden administration kept this Trump policy in place for more than a year when there was overwhelming condemnation by public health experts,” said Lee Gelernt, a lawyer with the American Civil Liberties Union, which was among those groups suing over Title 42.   

Biden administration officials have been wary of lifting a policy that’s granted officials more flexibility to quickly deal with foreign nationals apprehended at the border, as Democrats eye border crossing figures ahead of the November midterm elections.

The Department of Homeland Security (DHS) has signaled its preparing for an influx of migrants at the border, something they said could result from typical spring migration patterns or the lifting of Title 42.

Figures could jump as high as 18,000 crossings a day, up from around 7,000 currently, with the administration scaling up housing, transportation, medical care and processing capacity to accommodate the increase.

“Once the Title 42 Order is no longer in place, DHS will process individuals encountered at the border pursuant to Title 8, which is the standard procedure we use to place individuals in removal proceedings,” Homeland Security Secretary Alejandro Mayorkas said in a statement

“Nonetheless, we know that smugglers will spread misinformation to take advantage of vulnerable migrants. Let me be clear: those unable to establish a legal basis to remain in the United States will be removed.”

Still, Republicans have been gearing up to attack Democrats on the issue regardless: The right-wing House Freedom Caucus has tried to force a vote on a bill to keep Title 42 in place, while the Republican National Committee released a video series seeking to pin border woes on Democrats.

Immigration restrictionists panned the administration’s decision to end Title 42, which they see as a final rampart against “mass migration.”

“The Biden administration’s decision to end Title 42 without an adequate back-up plan is yet another example of their contempt for public health, safety, and national sovereignty. This is an unprecedented invitation to chaos at the border,” said Dan Stein, president of the Federation for American Immigration Reform.

“Having abandoned or sabotaged nearly every form of deterrence against illegal immigration as part of their political goal of open borders, the Biden administration’s continued use of Title 42 has served as the only tool preventing nearly every border crosser from being released into the United States,” Stein added.

The Biden administration has acknowledged it will need time to ramp up resources at the border to prepare for the withdrawal, a factor in the delay in striking Title 42. 

That factor led to criticism from moderate Democrats, including Sens. Joe Manchin (W.Va.) and Kyrsten Sinema (Ariz.), who deemed its termination a mistake.

Manchin called its striking “a frightening decision” for an administration “nowhere near prepared” for an influx at the border.  

Republicans have sought to portray the border as open, but the border agents have another Trump-era tool at their disposal: the Remain in Mexico program, known formally as the Migrant Protection Protocols (MPP).

The Biden administration re-started the program due only to a court order. Officials said Friday that more migrants would likely be enrolled into the program that requires asylum seekers to wait in Mexico until their court date in the U.S.-based immigration system.

“Obviously we will employ [MPP] in much greater numbers post-Title 42. You know, we are under a court order to reimplement MPP in good faith and as part of those good faith efforts, we have been systematically increasing our enrollments under MPP,” a DHS official said on a call with reporters.

Updated at 3:26 p.m.