Special Edition—Title 42 is dead. Long live Title 42—05-13-23
Immigration news, in context
This is the 156th edition of BORDER/LINES, a newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.
Given the significant public interest in the expiration of Title 42 and its aftermath, we’re keeping this week’s analysis un-paywalled. We pride ourselves on being a vector of in-depth information about pretty much every salient area of immigration policy that is still readable and understandable by the general public — a bridge between the surface-level coverage and dense material meant for lawyers. To get access to all of these in-depth breakdowns, subscribe below, and thanks to all our supporters.
The Big Picture
At midnight last Thursday, Title 42, which for three years had been used to expel would-be asylum seekers at the border, to the eventual tune of over 2.7 million expulsions, came to an end. The most salient question in its immediate aftermath was: how much would things change? The short answer, so far, seems to be: not much.
The longer answer is that Title 42 wasn’t so much totally jettisoned as it was replaced by policies meant to basically replicate it. Title 42 has been a perennial topic of discussion in this newsletter and in the immigration policy space for years, and so we won’t exhaustively break down its structure and legal dimensions here. The policy utilized an obscure public health law meant to help the government prevent the introduction of communicable diseases to suspend the entry of asylum seekers — and functionally only asylum seekers — avoidable only through the government’s shifting and discretionary exceptions and limited court orders like one prohibiting its application to unaccompanied minors. For more detail, check out one of our many prior editions on Title 42.
What we’re more interested in here is what’s happening now and what it all means. The main thing is the rollout of a finalized version of a new federal rule that bears a lot of similarity to a Trump-era asylum restriction known then as the transit ban. Thus, we called the proposed new rule the transit ban 2.0 and broke it down in detail last month, an edition we encourage you to read. The final version of the new transit ban makes very minor tweaks in response to public comments, but is fundamentally the same rule as what was originally published in the Federal Register. The rule targets anyone who passed through a country that’s a signatory of the 1951 Refugee Convention or its 1967 Protocol — which, crucially, Mexico is — without having first sought and been denied for asylum there before moving on to the U.S. border. These migrants are then presumed ineligible for asylum, with some very narrow exceptions, such as unaccompanied minors or those deemed to be facing some kind of acute medical emergency.
This presumption of ineligibility would work in tandem with expanded expedited removal (we’ve written extensively about that program, too), which would allow border authorities to deport migrants in a matter of days or even hours, without having to go through a process in immigration court. For those who are referred to credible fear interviews, the first step in an asylum process, the Los Angeles Times’ Hamed Aleaziz reported that the government would allow only 24 hours to find and consult with an attorney, making it much likelier that they will fail and be ordered deported. They would still putatively be eligible for protections under the lesser programs of Convention Against Torture and withholding of removal, which don’t provide paths to residency, but it’s likely the majority of migrants wouldn’t even know to seek these avenues.
Unlike an expulsion, which did not carry long-term legal consequences and sometimes wasn’t even formally recorded, a deportation through expedited removal carries a five-year ban on reentry at the risk of criminal prosecution, a fact that officials have enthusiastically pointed to as an extra dissuasive measure in the aftermath of Title 42. This means that for many migrants, the landscape of the post-Title 42 world might not be better but actually substantially worse than the Title 42 reality; instead of finding a renewed ability to apply for asylum, they’ll still be removed but with greater legal consequences. As with Title 42 expulsions, they might be deported to their countries of origin, or to Mexico, which has agreed to take Venezuelan, Nicaraguan, Haitian, and Cuban deportees.
The only other way to overcome the presumed asylum ineligibility is to use the government’s CBP One app, whose many shortcomings we’ve discussed at length. Among them are the functional problems with the app’s own performance, and practical problems like migrants’ ability to even run the app on their phones and have the internet connection to do so. Still, it’s not entirely correct to call CBP One’s various issues “flaws,” per se. Yes, some of them are essentially software glitches or design deficiencies, like the facial recognition’s now-notorious inability to properly recognize the faces of darker-skinned people and its lack of language options, respectively.
But the unavailability of appointments or its penchant for sending people to ports of entry at entirely different parts of the border aren’t bugs—they’re intentional design characteristics of the system. Conflating these with the flaws gives the administration some cover to insinuate that these are sort of temporary kinks to iron out that they’re very sorry about and working to fix, as opposed to choices that people have made very carefully to, in the longer-term, wean both the public and the media off the understanding of asylum as a system that’s freely accessible.
In other words, these are steps taken to fundamentally shift the understanding of measures like Title 42 from being emergency actions to being the governing paradigm at the border, partly by invoking the specter of an always-looming crisis. This was to some extent already happening with Title 42, which as we repeatedly noted as time went on, was less and less talked about in the context of the text of Title 42 itself, i.e. the actual statute that was supposed to undergird the order. By the last few months, most federal officials had stopped even cursorily referencing public health when talking about the policy and its eventual end.
Legislation introduced last week by Senators Kyrsten Sinema and Thom Tillis, which was frequently described as a two-year Title 42 extension, doesn’t actually even reference the statute the policy is derived from anymore, completing the divorce from what was supposed to be the Title 42’s whole purpose. This slide has always been framed as a need to avoid the crisis of a post-Title 42 border surge, which on first read makes sense, until you realize that the permanence of the policy is being justified on the grounds of preventing a problem that the policy created. There was always going to be a bottleneck of people waiting to exercise their right to apply for asylum as soon as the most stringent border policy in U.S. history was lifted, and so the argument becomes circular: we must adopt this crisis stance to avoid a crisis. But when everything’s a crisis, nothing is, and what you’re left with is just a new status quo.
The strategy has, in general, worked. Plenty of advocacy, legal, and civil liberties groups have issued fiery and even bewildered denunciations of Biden’s current approach, repudiations that would certainly have generated substantial outrage and political blowback in the Trump era. Yet at this point, the approach of restrictionism first, the ethos of “we can’t possibly go back to what we had before,” seems to have permanently taken root as the sensible, consensus option across much of official Washington and some significant swath of the liberal, moderate Democratic base, bolstered by support from blue state elected officials like New York City Mayor Eric Adams.
This is, by the way, the exact objective of people like Texas Gov. Greg Abbott. His stunt of bussing migrants to NYC without prior coordination, part of his litany of strange immigration enforcement cosplay policies, was often described as an effort to point out blue cities’ ostensible hypocrisy or sow chaos, which is definitely true. But the longer-term goal was to turn local officials and the public alike against migrants. Abbott doesn’t mind being Adams’ boogeyman — he probably relishes it — and in the end, rhetoric like Adams’ recent claim that the “city is being destroyed” by migrant arrivals, as well as his squabbling with neighboring counties over placements and musing the use of a decommissioned prison to house them is even more than the Texas governor could have hoped for.
This pairs well with Biden’s general paralysis on any system for accommodating or placing asylum seekers once they’re already in the U.S., leaving them to the proverbial wolves of opportunistic GOP governors or the general blind-fire approach that leads them to places like NYC on the vague expectation that they’ll be better off there. Biden has resisted calls to, for example, use the federal government’s vast resources including existing refugee resettlement and ICE transfer infrastructures to place asylum seekers in localities ready and willing to receive them as new workers, as the government already does with refugees.
The administration has vastly expanded its discretionary humanitarian parole programs — which, as we’ve noted, are not without their pitfalls — but entirely for would-be asylum seekers, ignoring calls to use the power to give existing asylum seekers quicker work authorization. (Yes, this strategy would be legally dubious, but that certainly never stopped Biden’s predecessor from implementing first and wrangling in the courts later.) All in all, the Biden administration seems extraordinarily apprehensive about doing anything that might seem like it’s actively helping asylum seekers resettle in the U.S., no doubt to avoid accusations that it is encouraging irregular migration. Early and absurd political charges of an “open borders” strategy clearly got under Biden’s skin, and the upshot is a reality of migrant arrivals that is much more chaotic than it needs to be.
Things like the administration’s new Latin American processing centers to screen potential migrants and the CBP One app itself are meant to both dampen the hit of significant border restrictions and signal that the administration is taking a Serious, Managed, Tech-driven approach. Ultimately, though, the new systems are just layered onto old approaches; the processing centers are another step in the longstanding path trend towards border externalization, i.e. pushing the border outwards and away from U.S. jurisdiction where protections apply, and CBP One, as we’ve written, is really just another version of the Trump-era metering program.
Recent reports indicate that the government is intending to bring the number of available daily appointments up to about 1,000, which is a small fraction of the demand. Yet while metering was denounced and eventually struck down as an unlawful for preventing migrants from accessing the asylum system with no valid legal rationale, Biden’s hope is that the CBP One’s veneer of intentional management, as opposed to the ad hoc nature of metering, will let it pass legal muster despite being fundamentally the same type of restriction.
Ultimately, Title 42 has ended, but the asylum restrictionist approach that it was the apex of has clearly not. For now, there’s no return to normal Title 8 processing — which, as regular readers of our historical analyses know, has never been impartial or apolitical, but at least provided some semblance of access and cursory due process. Title 42 is dead. Long live Title 42.
How we got here
We all know the chain of events that led to this moment: the Trump administration, taking advantage of a pandemic that it otherwise initially pretended didn’t exist, used the public health emergency to invoke Title 42 in March 2020. At the time, so many other aspects of the immigration system—and of our lives—were put on hold that the public health rationale almost seemed plausible, even though experts in both contagious disease and immigration policy warned that shutting the border down for asylum seekers would do little to slow the spread of a virus that was already prevalent in the United States. In fact, top scientists at the Centers for Disease Control and Prevention initially refused to implement Title 42 and only did so after then-Vice President Mike Pence ordered them to.
It makes sense that the Trump administration used the pandemic as a pretext to effectively shut down the asylum system, since Trump and his top immigration adviser Stephen Miller made no secret about trying to do just that using whatever tools they had at their disposal.
Before the pandemic, the Trump administration tried to find ways to make asylum seekers someone else’s problem, through practices like metering (limiting the number of people who could ask for asylum at ports of entry each day, creating a bottleneck effect in Mexico), the Remain in Mexico policy, and later, third-country agreements with Guatemala, El Salvador, and Honduras. Metering and Remain in Mexico kept migrants physically out of the United States, but the third country agreements were a concerted effort to shunt responsibility for even processing their cases at all. What was more shocking was the Biden administration’s continued refusal to rescind the policy. There was always a convenient excuse not to do so: first it was that there was no off-ramp and administration officials needed to come up with a way to phase out Title 42 without causing chaos at the border; then it was a new Covid-19 variant, then another, then another.
Curiously, Title 42 stayed in place even as the administration lifted other Covid mitigation measures, immigration-related and otherwise—and as time went on, the public health veneer mattered less and less. The Biden administration was, as we wrote above, terrified of being perceived as having opened the border. Susan Rice, who stepped down from her role as domestic policy adviser this May, was reportedly obsessed with ensuring that expulsion flights were always at full capacity. Biden could have ended Title 42 early in his term. The longer the policy stayed in place, the more entrenched it became. We’ve written a lot about the externalization of the border and the bipartisan deterrence regime that has chipped away at humanitarian migration over the past three decades, of which Title 42 is a part. One thing we haven’t dedicated as much time to in this newsletter is the use of health writ large to limit migration.
Congress passed several health-related immigration restriction laws at the turn of the twentieth century, one of which denied entry to anyone inspectors at Ellis Island deemed “mentally or physically defective,” as well as to “epileptics, insane persons, and persons who have been insane within five years previous … persons afflicted with tuberculosis or with a loathsome or dangerous contagious disease.” In 1916, the U.S. Public Health Service began conducting medical inspections of Mexican travelers at the southern border. Five years later, the Public Health Service created a Mounted Quarantine Guard to monitor the border for anyone trying to cross without being inspected.
When the U.S. Border Patrol was established as part of the Immigration Act of 1924—the same legislation that limited migration from the Eastern Hemisphere using a national origins-based quota system—the Quarantine Guard was phased out, but medical inspections persisted until 1938. Under the Bracero Program, agricultural laborers who were granted temporary admittance into the United States were similarly subjected to medical inspections and were even sprayed with the toxic pesticide DDT, which the Environmental Protection Agency banned in the 1970s.
There was, of course, a risk of people with tuberculosis entering the United States via Ellis Island or by crossing the U.S.-Mexico border prior to these policies—but as was the case with Title 42, the public health rationale for them was a pretext used to justify restrictionist policies nativists long wanted to implement. And like Title 42, these ostensibly public health related measures gave way to permanent changes to the immigration system.
As with all U.S. immigration policy shifts, migrants are being alerted through what is essentially a massive and predictably inaccurate game of telephone. Thousands of people had been waiting as close as right across the border for the policy to be terminated, many not knowing or fully understanding that the aftermath of Title 42 would not be a return to standard Title 8 processing. The situation remains somewhat uncertain and fluid, but there have been some sporadic reports of people already being referred for expedited removal post-Title 42, including accounts of family separation.
As word spread that new draconian restrictions were coming down the pike, there were some reports of an uptick in border encounters (also seasonal) in the lead-up to Title 42’s expiration, but since then it seems like crossings have fallen off a cliff, with Homeland Security Secretary Alejandro Mayorkas gloating to CNN’s Dana Bash that border encounters had been cut in half from Friday to Saturday, dropping from 6,300 to 4,200. That’s just one metric, but by most accounts, including local officials along the border (who often have a better grasp of the situation than national officials), the projected sudden upswing in crossings failed to materialize.
That doesn’t mean that migrants are giving up. The San Diego Union-Tribune’s Kate Morrissey detailed a group going through the same daily ritual post-Title 42 as they went through during Title 42: fruitlessly refreshing the CBP One app and attempting to secure a slot to present at a port of entry to seek asylum, either hitting system errors or finding no available appointments. That vignette illustrates the reality of this moment: Title 42 or no Title 42, the situation has stultified into this sort of perennial border restrictionist posture.
Of course, we’re in early days, and there’s plenty left to be seen about how exactly the administration continues approaching the post-Title 42 world. It’s possible that it will deem a good number of people to have overcome the presumption of asylum ineligibility, or it may well exempt almost no one and keep the CBP One appointment numbers very low. Will the processing centers that are opening in Latin America be a substantial conduit for new humanitarian arrivals, or are they more of a misdirection away from the realities of the new border policies? What are the troops doing at the border? What will be the upshot and federal response to states like Texas continuing to try to establish their own immigration enforcement policies?
This version of the transit ban is also, like its predecessor, under acute legal jeopardy. The ACLU has already sued to stop it, and some legal analysts are predicting that, given the precedents and legalities involved here, the administration’s efforts to make it compliant — including the very limited exceptions — won’t be enough. The CBP One exception is, after all, just another version of metering, another policy that was struck down. If there’s an injunction or even a final ruling and the transit ban goes down, then what? There’s at least some likelihood that word will spread and the surge of arrivals that was expected in the immediate aftermath of Title 42 will actually materialize then. How does the administration respond? Does it rush to enact an overlapping asylum restriction, as the Trump administration so often did? It’s hard to say.
A federal judge in Florida recently issued a restraining order blocking a Biden policy that would have allowed the administration to issue parole to some arriving families and instruct them to check in with ICE instead of placing them directly in removal proceedings, removing another option to control the immigration court backlog and avoid detaining families. It seems relatively unlikely that the administration will be happy to accept a defeat of its asylum restrictions that will then force it back into the uncomfortable position of detaining more families. In the meantime, market analysis site Seeking Alpha has upgraded the stock of private detention conglomerate GEO Group to “strong buy” in anticipation of strong profits from growth in detentions, not to mention GEO’s piece of all sorts of surveillance technologies used in the administration’s alternatives to detention programs.
In the meantime, an eight-year-old girl died yesterday in Border Patrol custody after having what is vaguely described as a “medical episode.” The machine churns on.