Title 42 is a kidnapper’s bonanza as the admin considers making certain targeted exemptions—04-30-21

Immigration news, in context

This is the seventy-seventh edition of BORDER/LINES, a weekly 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.

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This week’s edition:

  • In The Big Picture, we explore the incidence of kidnappings of migrants expelled under Title 42, as well as the administration’s consideration of a formal exemption policy.

  • In Under the Radar, we take a look at a recent Supreme Court ruling with significance for immigrants.

  • In Next Destination, we discuss a couple of counties’ decision to phase out the use of detention space for immigration detention.

The Big Picture

The news: Asylum-seeking adults and families expelled to Mexico under the ongoing Title 42 order are easy pickings for kidnappers and extortionists, who prey on them almost as soon as they’re dumped back on the other side of the border. At the same time, the Biden administration is considering a limited program to allow particularly “vulnerable” migrants to bypass the restrictions, formalizing an existing system of subjective exemptions.

What’s happening?

Regular readers will know plenty already about the Title 42 order. The Trump-era provision, weakly tied to the coronavirus pandemic as a supposed public health measure, allowed border officials to quickly expel anyone who showed up at a port of entry or crossed the border without valid entry documents, regardless of their intent to seek asylum. It effectively shut down the ability to apply for asylum altogether, and Biden has kept the measure in place during his administration. For now, unaccompanied minors are the sole group completely exempted, and while some families are being let through, the majority of adults and families with children are still being turned away almost immediately.

A number of people are expelled on flights back to their countries of origin, but many are merely sent back across the border to Mexico, sometimes within hours of their attempted entry. It’s this group in particular that presents a tantalizing prospect for organized criminal gangs, for a number of straightforward reasons: they are often correctly assumed to have family members already living in the U.S., who would be in a position to pay a ransom for a relatives’ safe return; they are often from Central America or even so-called “extra-continental” migrants from countries in Africa or Asia, with no ties to Mexico and sometimes no ability to even speak Spanish; no one is really going to come looking for them, and they have very limited avenues for recourse apart from just giving in to kidnappers’ demands. As the Los Angeles Times’ Molly O’Toole reports, even when U.S.-based family members report extortion attempts to the FBI, there is usually no law enforcement response. Attorneys are advising families to just pay up, as that’s the only way to get people released.

The presumed expulsions and the imminent threat of harm and kidnapping from being in Northern Mexico has also been a boon for coyotes, the smugglers who specialize in leading migrants across the border, who are offering deals on multiple crossings with the presumption that they might be expelled on some attempts. Sometimes, the coyotes are themselves the kidnappers, charging migrants to cross and then charging their family members ransoms to allow the crossings to happen. All of it has been profitable for the cartels, who control the routes and charge tolls for their use. A VICE’s Emily Green and Keegan Hamilton recently reported, it’s also been profitable for U.S. financial companies and money-transfer companies, which handle the bulk of the payments.

Throughout all of this, Biden officials have maintained that keeping Title 42 in place is necessary for hazy reasons related to processing capacity and the need to manage migration flows. The original public health rationale is at this point largely absent from the rhetoric surrounding the order, which is in place indefinitely, until officials decide it is no longer necessary. Border officials retain the discretion to parole people into the country when they deem it appropriate, though what criteria trigger that use of discretion remain elusive and shifting. In some cases, families have been let through because the Mexican government refused to take them.

BuzzFeed News’ Hamed Aleaziz this week reported that the administration is considering a more formal process to make determinations about who should be exempted from Title 42, based on an as-yet undefined categorization of “vulnerability.” According to draft documents, this determination would not be made by border personnel upon migrants’ attempts at entry, but earlier, using nonprofit and service organizations with a presence in Mexico to flag asylum seekers who would potentially qualify, and whose personal and biometric data would then be forward to CBP.

How we got here

The Title 42 order was ostensibly a public health measure—one that top officials at the CDC initially refused to implement, because it lacked a valid public health justification. As we all know, the order came through anyway, and it’s been in place for more than a year now. Title 42’s real purpose wasn’t to prevent the “introduction or spread” of COVID along the border, even though that’s what the law requires; it was to shut down the asylum system as we know it, and that’s exactly what it did.

For the Trump administration, Title 42 was arguably the crown jewel of a series of interlocking policies meant to end asylum. Before the pandemic gave the administration a public health justification for shutting down the border, it implemented a number of other policies with the same end goal in mind: the Remain in Mexico policy, asylum cooperative agreements with three Central American countries, family separations at the border. As a National Security Council official said in an email to CBP officials, these policies serve to “multiple unsolvable dilemmas to impact [migrants’] calculus for choosing to make the arduous journey to begin with.” Once asylum seekers got to the U.S., a set of additional policies—such as prolonged detention, legal restrictions on what types of persecution made one qualify for asylum, to name a few—served as additional hurdles. But some asylum seekers still won their cases; in the Trump administration’s view, they slipped through the cracks of a border and legal system whose sole purpose was to delegitimize their asylum claims and deport them as quickly as possible. 

Then Title 42 came along. Of all the Trump-era immigration policies, it has certainly been the most effective at keeping asylum seekers out. Under Title 42, almost any unauthorized migrant who presents themselves at the border can be be turned away. Instead of being processed and having their case adjudicated by an immigration judge, migrants subject to the Title 42 order are quickly “expelled”—either to their country of origin or to Mexico, even if they aren’t from there.

The Biden administration has kept Title 42 in place despite Biden’s campaign promises to strengthen the asylum system and undo Trump’s harmful immigration policies. In February, White House Press Secretary Jen Psaki told reporters that migrants should understand “now is not the time to come” to the United States, and that border officers would continue to turn away the “vast majority of people.” At a press conference last week, Psaki said the order “is still in place because we are still in the midst of fighting a global pandemic. So I don’t have any predictions of when that will change.”

The only problem with that explanation is, as we mentioned above, officials at the CDC initially pushed back against the Title 42 order because it had no public health justification. With vaccinations on the rise and Covid cases on the decline, it’s extremely unlikely that processing asylum seekers and other migrants at the border would lead to another surge, especially if they’re tested upon arrival. (But, as the New York Times recently reported, Border Patrol isn’t testing most migrants in its custody; instead, nonprofit and humanitarian organizations that provide aid for migrants are taking on the responsibility of testing them.)

It’s worth emphasizing that these are deliberate policy choices. The Biden administration could lift Title 42 today if it wanted to; it could mandate mass testing in Border Patrol processing facilities. It’s clear that Biden and his staffers are concerned about him being perceived as an “open borders” president, and the ongoing narrative of a crisis at the U.S.-Mexico border isn’t helping. But no matter what Biden does, Republicans will characterize him as an advocate of open borders, even if he’s doing the opposite and functionally keeping the border closed to asylum seekers. 

By keeping Title 42 in place—even in a limited or reduced capacity—the Biden administration is putting thousands of migrants in danger. In fact, the dangers migrants face under Title 42 are nearly identical to those they faced under the Trump administration’s Remain in Mexico policy, which the Biden administration has begun the process of undoing. Officially known as the Migrant Protection Protocols, that policy required asylum seekers to wait in Mexico while their immigration cases were processed in U.S. immigration courts. The policy made migrants sitting ducks for kidnappers. Title 42 is no different, with one key exception: under Remain in Mexico, migrants at least got to argue their cases before a judge.

What’s next?

What’s next?

The fact that the administration is considering a targeted exemption program for Title 42 at all is a pretty clear indication that there are no current plans to terminate the order. The administration appears to want to have its cake and eat it too: keep the unprecedented and immensely restrictive policy that blocks even access to the legal asylum system, but permit a limited number of vetted and vulnerable individuals to submit claims, helping dodge public scrutiny for allowing desperate migrants to languish in Mexico and risk kidnapping.

The details remain very sketchy, and whether or not this move is going to be merely a PR play to trot out every time a reporter starts asking tough questions about Title 42 (reminiscent, for example, of the absurdly limited waiver process in Trump’s original travel bans) will depend on how broad the criteria are, how seriously the government will take humanitarian organizations’ recommendations, and how quickly it will move to process them. There are, right now, thousands of people waiting for a chance to present an asylum claim, some who have yet to try and some who have been expelled. If this waiver system is drawn such that it will include, say, a couple dozen people a day, that will be life-changing for those people but do little to change the panorama as a whole. It’s also the case that this proposal is still just that, an idea that is being weighed but has not been finalized.

It’s also not clear what, if anything, the government might do with regards to the endemic kidnappings. It’s easy to draw a very short, straight line from the continuation of Title 42 and the well-documented violence and abductions against expelled migrants, yet there hasn’t been much indication yet that the Biden administration intends to even recognize this phenomenon, let alone do something about it. Once again, we run into the public awareness on the situation of asylum seekers on the other side of the border. While the arrival of large numbers of unaccompanied minors caused a barely informed media frenzy that dominated airwaves for weeks, the plight of others a few hundred feet away in Mexico has not led to any widespread acknowledgement.

There are limited steps that the U.S. government could take to remedy the situation (apart from just ending Title 42, of course), and it does not possess any investigatory capabilities in Mexico. What it clearly does have, however, is considerable influence with the López Obrador administration, influence that it has so far been using to pressure Mexico into stopping migration by force. If it really wanted to, it could certainly lean on the Mexican government to dedicate more resources to safeguarding asylum seekers, but that’s not something that appears to be on the horizon.

Meanwhile, the ACLU has been in a sort of standoff with the administration, having paused an earlier lawsuit against the Title 42 policy, but threatening repeatedly to ramp up the litigation if the government drags its feet too long. If the upcoming vulnerable migrant waiver is disappointing, that could be the spark that sends it barrelling back into the fight.

Under the Radar

SCOTUS rules that government must provide all relevant information on charging document

The Supreme Court ruled that the government must include all relevant information on an immigrant’s notice to appear in immigration court—the document that marks the beginning of deportation proceedings. 

This is a lot of jargon up front, so let’s take it step by step: a notice to appear is the document ICE serves to people it seeks to deport from the U.S. It lays out why the government is attempting to deport them and, in theory, should include the date and location of the person’s first immigration hearing. When a noncitizen gets a notice to appear, the “stop-time” rule is triggered. There’s a length of time that an immigrant has to be continuously physically present in the U.S.  before they can qualify for cancellation of removal, a way to get relief when all other options are exhausted. However, this ticking clock stops once the removal proceedings are initiated. At issue in  Niz-Chavez v. Garland, the case before the Supreme Court, was whether the issuance of an incomplete notice to appear — equivalent to a charging document —triggers the stop-time rule, at that moment pausing the amount of time that the immigrant is considered to have been present.

In 2013, ICE sent Agusto Niz Chavez,a Guatemalan immigrant, two separate notices: the first notice laid out the charges against him, and the second included information about his hearing. Niz Chavez argued that the first notice couldn’t trigger the stop-time rule because it was incomplete. The Supreme Court agreed; as Slate’s Mark Joseph Stern wrote, the entire case came down to the word “a.” Justice Neil Gorsuch, writing for the majority, said the government “must serve ‘a’ notice containing all the information Congress has specified.” Two incomplete notices aren’t the same as a notice. Though the case was related specifically to the stop-time rule, the ruling will force the government to issue a single notice to appear in all cases going forward.

Next Destination

Two northeast jails will stop detaining immigrants for ICE

Essex County, New Jersey and Franklin County, Massachusetts will both stop detaining immigrants for ICE. 

Immigrant detainees will be moved out of the Essex County Jail, which has detained immigrants for ICE for 13 years, by the end of August, Gothamist/WNYC’s Matt Katz reports—but the county isn’t ending its agreement with ICE. Instead, it has pledged to “depopulate” the jail of ICE detainees; the ICE contract will still exist. Under the existing contract, Essex County makes $117 a day per ICE detainee. No longer honoring the contract is a political decision, not an economic one; advocates regularly criticized the county’s Democratic leadership for detaining immigrants, particularly under the Trump administration. 

Meanwhile, the Franklin County Sheriff’s Office is ending its contract because of a drop in immigrant detainees and the revenue they generate, Commonwealth Magazine’s Sarah Betancourt reports. A spokesperson for the sheriff’s office told Commonwealth that the decision was “financial, not political.” 

This news comes amid a renewed push from advocates to get the Biden administration to shut down detention centers across the country. The ACLU recently called on Biden to shut down 39 ICE detention facilities, citing both humanitarian concerns and the outsized cost of running these facilities despite “the historically low number of people in ICE detention.” According to NPR, ICE pays more than $1 million a day for empty detention beds because of “guaranteed minimums” outlined in its contracts with certain operators. After being confronted by advocates, this week, Biden said his administration would close private detention centers. “There should be no private prisons, period,” Biden said. “None, period. That’s what they’re talking about, private detention centers. They should not exist. And we are working to close all of them.”

But as the Essex and Franklin county cases show, ICE relies on public and private facilities to detain immigrants—and facilities run by local governments are more vulnerable to pressure from activists.