Biden inherited the policy from Trump, but even immigration hawk Mark Krikorian calls it a ‘dishonest means of damage control by this administration.’
Biden inherited the policy from Trump, but even immigration hawk Mark Krikorian calls it a ‘dishonest means of damage control by this administration.’
O n March 4, in the case of Huisha-Huisha v. Mayorkas, the U.S. Court of Appeals for the D.C. Circuit upheld Title 42 — a public-health order that’s being used to turn away asylum-seekers at the border — but defined a crucial caveat. The court ordered that migrants can continue to be expelled under the policy but “only to places where they will not be persecuted or tortured.”
Title 42 was issued by the Centers for Disease Control on March 21, 2020, and reissued October 13, 2020, under the Trump administration. The order stated that migrants traveling through Canada and Mexico into the United States posed “a serious danger of the introduction of COVID-19 into the United States” and that “temporary suspension is necessary to protect the public health.” Under Title 42, according to Customs and Border Protection (CBP), migrants will not “be held in congregate areas for processing” and will “immediately be expelled to their country of last transit.”
Under Biden — to the surprise of border activists and the president’s supporters — the CDC reimplemented Title 42 on August 2, mandating an exemption for unaccompanied noncitizen children, citing “specific COVID-19 mitigation measures available in facilities” for these minors. The American Civil Liberties Union, which sued the Trump administration, renewed its suit under the Biden administration.
The plaintiffs in Huisha-Huisha v. Mayorkas, six migrant families expelled under Title 42, claimed that the enforcement of the order violated the Immigration and Nationality Act, which guarantees a right to seek asylum, withholding of removal (a migrant cannot be sent back to persecution), and relief from torture in the person’s country of origin in accordance with the Convention Against Torture. Though migrants with valid persecution or torture claims are now exempt from Title 42, the power to grant asylum remains at the discretion of the executive branch.
Democrats were vocal critics of Trump’s “anti-immigrant” approach to the border. Sergio Gonzales, a member of the Biden transition team, said that the Trump Justice Department oversaw “hideous anti-immigration policies” and that it was critical for a Biden DOJ to “undo that agenda.” However, in Huisha, the Biden White House defended Trump’s Title 42, reflecting a political and security reality at the border. Lee Gelernt, the ACLU’s lead attorney on Huisha-Huisha v. Mayorkas, told National Review that he thinks the ongoing use of the policy is “political” and actually “an immigration-enforcement tool.”
With numbers surging at the border, the Biden administration is likely holding on to the policy in the absence of a durable plan for the reform of the asylum system.
In fiscal year 2021, there were 1,734,686 encounters at the southern border, up from 458,088 in 2020. To date this fiscal year, there have already been 672,838 encounters. Out of those, more than half (344,517) were turned away under Title 42 without any asylum screening. Similarly, in 2021, more than half (1,063,526) were also processed under Title 42. In the Biden years, the overall percentage of Title 42 expulsions has been lower than in the Trump years, but the sheer magnitude has been higher.
Before Covid, migrants arriving at the southern border were processed exclusively under Title 8, the section of the Code of Federal Regulations dealing with “aliens and nationality,” and assessed for asylum claims. Andrew Arthur, a former immigration judge and a resident fellow at the Center for Immigration Studies, told NR that for migrants being processed under Title 8, a “majority of them are being released into the United States” as they await further processing and asylum hearings. Title 8, however, mandates that these migrants must remain “detained.” According to Arthur, this creates an incentive for more migrants to “enter the United States illegally.”
Currently, families and unaccompanied minors are likely to continue to fall under Title 8 even though Title 42 technically applies to all asylum seekers (with the exception of children under the Biden administration’s exemption).
According to the CDC’s reassessment report on Title 42 in August, a “significant percentage” of family units (73.8 percent in 2021) were “unable to be expelled” for a “given range of factors, including . . . restrictions imposed by foreign governments.” The Mexican government accepts only returned Mexican and Northern Triangle nationals. On top of that, Mexican officials “refuse to accept the return of any non-Mexican family with children under the age of seven.” This, in turn, “greatly [reduces] DHS’ ability to expel” family units. Given all these factors, the great majority — 87.6 percent — of all Title 42 encounters since March 2020 have been single adults.
The following chart from CBP breaks down Title 42 encounters:
Meanwhile, family units and single minors are more likely to be processed under Title 8. This chart breaks down Title 8 encounters:
In 2022, 87.5 percent of single adults processed under Title 8 were either from Mexican or Northern Triangle nations.
From its inception, Title 42 has been a controversial policy. The Trump administration was accused of implementing Title 42 as a political tool to curb immigration rather than a public-health measure. Indeed, Anne Schuchat, who was No. 2 at the CDC under Trump, claimed that the decision to invoke Title 42 was not grounded in public-health concerns and likely was implemented over the objections of certain CDC officials. According to Schuchat, Marty Cetron, the director of the CDC’s Division of Global Migration and Quarantine, felt that “the facts on the ground didn’t call for this from a public-health reason” and that Title 42 was used “for other purposes.”
Now, under Biden, the policy is getting more scrutiny than ever.
While the D.C. circuit court upheld Title 42, noting that Congress gave the executive the power “to determine that individuals from certain countries should be excluded . . . during public-health emergencies,” it did write that the policy is a “relic from an era with no vaccines, scarce testing, few therapeutics, and little certainty.” It also remanded the case, noting the balance of equities “favors the Plaintiffs” in their claim that the order is “arbitrary and capricious.”
Immigration experts and advocates seem to agree, irrespective of their political affiliation.
Gelernt told National Review that the current use of Title 42 “has no public health justification any longer.” The Biden administration “has used Title 42 in lieu of . . . devising whatever immigration policy they think is warranted and necessary.” He noted that, aside from Hungary, every nation in Europe “is allowing asylum seekers and making whatever modifications are needed for Covid.”
Interestingly, border-policy experts on the right have made the same assessment. Mark Krikorian, the executive director of the Center for Immigration Studies, told NR that Title 42 is a “crutch that [the Biden administration] inherited from . . . the Trump administration.” As Krikorian sees it, Title 42 “made sense in 2020” but now is a “dishonest means of damage control by this administration.”
Where critics from the right and the left differ on this issue is in their vision for a post–Title 42 policy. Krikorian says he’s “in favor of borders” and wants them enforced “honestly and straightforwardly,” while progressives tend to prefer a more open approach to the border.
Democratic senators like Majority Leader Chuck Schumer and Bob Menendez are pressuring the Biden administration to end Title 42. In a press call on Thursday, Schumer said the policy put refugees “in additional danger by denying them a chance to plead their case.” Instead, they are left “at the mercy of criminals and smugglers.” Menendez, who has requested a meeting with the president to advocate an end to Title 42, said that the White House has had enough time to “figure out how one appropriately processes those seeking asylum.”
Advocacy groups have also criticized the Biden administration for its disregard for migrants fleeing violence and instability in their countries. In December, Witness at the Border reported that 9,000 Haitians were returned to their native country despite natural disasters, rampant violent crime, and political unrest. Activists claim that returning migrants to conditions like these violates the Immigration and Nationality Act. The administration also turned away Venezuelan asylum-seekers fleeing Maduro’s socialist dictatorship without giving them a shot at asylum. Assuming the March 4 Huisha ruling is enforced, it will likely be easier for migrants to seek asylum if fleeing similar conditions, making the policy all the more flimsy.
With scrutiny mounting (and Covid waning), it’s likely that the Biden administration will have no choice but to axe Title 42. “In light of the D.C. Circuit’s ruling and CDC’s decision to loosen other Covid restrictions, it is now especially untenable for the administration to continue Title 42,” said Gelernt.
The dismantling of Title 42 will likely happen in the coming months; the latest iteration of the policy is set to expire anyway on April 6 unless the CDC requests renewal. Indeed, officials at the Department of Homeland Security reportedly are planning to tell Mexican officials about the impending expiration of Title 42, likely driving another surge of migrants.
Pressure to end the policy will be especially intense from border activists in light of a recent Texas court ruling that ended the child exemptions for Title 42 expulsions. (This was a particularly controversial case given Texas’s otherwise lax approach to Covid restrictions.) They’ll want to see the policy end before Texas can implement the ruling.
However, Biden is going to have to devise a new approach to border control, and fast, because as of September, migrant encounters at the U.S.–Mexico border reached a 21-year high. Without Title 42 in place, the administration will have few tools to control thousands of daily encounters at the southern border. Arthur said this will have major “political implications” for Biden, especially among “security-minded voters.”
In late February, Biden polled at a 32 percent approval rating for his handling of immigration. Having consistently polled quite low on his immigration policy, he could drop below 30 percent, according to Arthur, who noted that 12–15 percent of voters see immigration “as the most important issue.”
Whether it’s do or don’t on Title 42, the Biden administration is sure to face political consequences while the situation at the border worsens for migrants and law enforcement alike.