Advocates step up pressure on Biden to end controversial Title 42

Advocates cheering the Biden administration’s decision to lift travel restrictions at the U.S.-Mexico border are expected to increase pressure on the White House to scrap a Trump-era policy that allows for swift expulsion without the chance to seek asylum.

The U.S. on Wednesday announced it will resume allowance of nonessential travel for those from Mexico and Canada, ending a more than 18-month restriction that frustrated border communities whose economies rely heavily on frequent crossings.

The borders will open sometime in November to travelers from either country who can show proof of vaccination against COVID-19.

But the lifting of restrictions with Mexico is likely to tee up conversations about another border policy, Title 42, which the Biden administration has used to return hundreds of thousands of migrants, including those fleeing persecution.

“The administration has maintained that Title 42 is necessary for public health, but now they are peeling back some other restrictions at the southern border that are based on public health, and that’s going to make it much more difficult for them the maintain Title 42, at least on the basis they had previously,” Jorge Loweree, policy director with the American Immigration Council, told The Hill.

“It’s very difficult to argue some border restrictions are necessary for public health and others are not,” he added.

Critics of Title 42 argue that the border restrictions were a barrier to nixing the asylum policy first brought into practice under former President Trump, citing the difficulty of scrapping the rule while the Biden administration kept broader COVID-19 restrictions in place.

Biden administration officials insist that this past week’s loosened border restrictions will have little bearing on Title 42, a policy they view as necessary given the close quarters in border facilities.

“Those folks are generally held in congregate settings, and that’s the real concern here. I don’t know if you’ve ever seen the inside of a Border Patrol station, but they’re really not built for, nor are ports of entry, built to hold folks in any kind of a way where one could socially distance. They’re not set up for a global pandemic situation,” a senior administration official told reporters earlier this past week.

“So, that’s really, the Title 42 restrictions are really about protecting the migrants themselves, the [Department of Homeland Security] workforce and local communities. I think there’s a strong public health basis for continuing, for the moment given current conditions, to continue with the Title 42 restrictions,” the official added.

The administration’s line of argument, however, doesn’t sit well with many immigration advocates.

“That rationale is dramatically untied to what we’re doing at the border now,” said Ahilan Arulanantham, co-director of the Center for Immigration Law and Policy at the UCLA School of Law.

“People awaiting repatriation are often held for days, if not weeks, which obviously is much longer than needed to transmit COVID, and they often transport them together, so the core rationale for Title 42 and holding facilities has no connection to the reality of what they’re doing on the ground,” he said.

“The idea that we cannot protect people that face persecution and torture in their home countries because we have to put them in a building where they could spread coronavirus to other people is just preposterous,” he added.

The Biden administration is facing a renewed suit challenging Title 42 after the American Civil Liberties Union (ACLU) initially agreed to pause its litigation after President Biden took office. 

“The Biden administration is legally required, and morally obligated, to provide asylum hearings,” Lee Gelernt, the ACLU’s main lawyer on the case, told The Hill.

“That the Biden administration would lift restrictions on nonessential travel while continuing to deny asylum hearings to desperate families is appalling and further illustrates just how little things have changed since the Trump administration. It is time for the CDC’s [Centers for Disease Control and Prevention’s] medical professionals to show some courage and refuse to provide political cover for the administration’s political immigration agenda,” he added.

The concept was recently boosted by Anthony Fauci, the government’s top infectious diseases expert, who pushed back on the idea that migrants posed a risk to the U.S. given how much COVID-19 spread has resulted from residents’ refusal to get vaccinated.

“When you have 700,000 Americans dead and millions and millions and millions of Americans getting infected, you don’t want to look outside to the problem. The problem is within our own country,” Fauci said on CNN earlier this month.

“Certainly immigrants can get infected, but they’re not the driving force of this. Let’s face reality here,” he added.

The loosened travel restrictions at the border followed lobbying from lawmakers who argued the policy was stifling local economies in their districts.

On the southern border, the restrictions often meant families have been separated throughout the pandemic.

“There are a lot of people like my grandmother that, while not U.S. citizens, have historically had the ability to come and go as they please for many years,” Loweree said.

“To many people that is essential travel; seeing your children in the flesh is essential travel. But the government decided for the better part of two years that it isn’t. And that created a situation where a lot of families have been separated and created a lot of hardship for elderly people like my grandmother, people that require a greater level of attention,” Loweree added.

Many advocates have been requesting cross-border travel guidelines that would allow vaccinated individuals to move more freely.

But other advocates argue that those seeking asylum should be afforded the same opportunity.

“How do you explain to someone that a vaccinated shopper can cross the border to go to El Paso and buy shoes but a vaccinated asylum-seeker who approaches the same port of entry has to be turned away and sent back to danger in the country they fled? What sense does that make?” asked Kennji Kizuka, associate director for research at Human Rights First. 

“Clearly there is no justification for keeping restrictions on asylum-seekers in place when they are not applied to anyone else,” Kizuka added.

There is also broad frustration among Democrats that the Biden administration continues to operate a Trump-era policy, one that Biden is increasingly taking ownership of now that the administration has expelled more migrants under Title 42 than Trump did. 

“Reporting made clear that under the Trump administration Title 42 was really being driven by people that wanted to end asylum in the Trump White House versus those at the CDC. It was really the tail wagging the dog,” Arulanantham said, calling the pandemic a route to a preexisting preferred policy outcome.

Loweree added that the continuation of Title 42 simply defies laws allowing migrants to pursue asylum cases.

“Seeking asylum in the U.S. is legal and claiming otherwise is very Trumpy. It’s a message we heard over and over again in the Trump era, and we expect different in this moment,” he said.

“Seeking asylum in the U.S., seeking humanitarian protection, is and should be viewed as essential travel,” he added.