Title 42 is here to stay (unless the ACLU defeats it)—08-06-21

Immigration news, in context

This is the ninetieth 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 examine the administration’s doubling down on Title 42, and the legal challenge against it.

  • In Under the Radar, we discuss a recent court order blocking the implementation of an executive order by Texas Gov. Greg Abbott targeting migrants in transit.

  • In Next Destination, we look at a recent USCIS rule change making it easier for children born abroad to same-sex parents to be considered natural-born U.S. citizens.

The Big Picture

The news: On Monday, the CDC formally announced that it was extending the so-called Title 42 restrictions along the U.S. land borders. This ends all the will-they, won’t-they speculation about how Biden would approach the most restrictive border policy in U.S. history, carried over from the Trump administration as a supposed public-health measure. The restrictions are in place indefinitely, until the CDC director—no doubt at the direction of the president—chooses to rescind them. Meanwhile, the ACLU has restarted a lawsuit against the order.

What’s happening?

If you’re even a semi-regular reader of BORDER/LINES, you’re probably well aware of Title 42 by this point. To briefly recap, the shorthand here is referring to Title 42 of the United States Code, or the Public Health Service Act. You’ll notice that this is not Title 8, the Immigration and Nationality Act, because the CDC order really isn’t an immigration measure. Specifically, it leans on 42 USC § 265, “suspension of entries and imports from designated places to prevent spread of communicable diseases,” which permits the government to restrict the entry of people (and goods) from other countries when it determines that there is a “serious danger of the introduction” of a communicable disease.

Since last year, both the Trump and Biden administrations have interpreted that to mean that they’re allowed to expel would-be asylum seekers without evaluating their humanitarian claims. This interpretation is the  brainchild of white nationalist and former Trump adviser Stephen Miller. As we’ve noted before, federal judges have called this premise into question, though so far have only ruled against the expulsion of unaccompanied minors. The scope of the program has narrowed slightly as the Biden administration has chosen to voluntarily keep exempting unaccompanied children after that judicial order was overturned, the Mexican government has refused to accept expelled families in certain parts of the border, and the government has instituted limited humanitarian exemptions (more on those later).

Still, the measure remains in broad use across the border. After some Biden administration officials had feebly hinted at the idea that it may be terminated sometime in the late summer or early fall, this extension clearly indicates that it is doubling down on restriction. To drive that point home even further, Reuters’ Ted Hesson reported this week that the administration had begun flying some expelled Central American and Mexican families to southern Mexico instead of just sending them straight across the border. This is an attempt to not only evade some of the restrictions Mexico has been placing on cross-border family expulsions, but to prevent these families from simply trying again. It is as serious an indication as any we’ve seen so far that the administration has every intention to continue using this public health law to keep people out and far away from the United States.

The legal arguments against this use of Title 42 are manifold. In that unaccompanied minor lawsuit, the judge pointed out that the law itself has no mention of expulsions or anything remotely authorizing removal after someone has already entered the United States, only the suspension of introduction. The order very clearly conflicts with other areas of law, namely the asylum statutes, which generally give every noncitizen who’s set foot on U.S. soil the ability to present an asylum claim, and international law protecting the rights of refugees and enshrining the principle of non-refoulement, or non-return to danger. A spokesman for AFGE Local 1924, the union that represents asylum officers in the U.S. Citizenship and Immigration Services, went so far as to say that “every day Title 42 remains in place is a compounding violation of our obligations under the Refugee Convention and federal immigration law."

These arguments are now being pressed by the ACLU and several other legal and immigrant rights groups, which have a long-running lawsuit against the order. The organizations had suspended their litigation effort as they negotiated with the Biden administration on the potential end of Title 42, but are resuming it now that it’s become clear there’s no intention of terminating the order anytime soon. This ACLU-led initiative is now seeking a preliminary injunction to block the application of the order as the litigation moves through the courts. It’s not a quixotic effort, as there are plenty of coherent arguments to be made that the current use of Title 42 is plainly illegal. In the meantime, several of the humanitarian organizations that had been helping the administration identify people who might potentially be exempted from the order are pulling out, citing a lack of clarity and the violation of an understanding that this would be a stopgap measure on the path to Biden ending Title 42 once and for all.

How we got here

The Trump administration announced Title 42 in March, while the president was still denying the severity of the pandemic. From the outset, the flimsiness of the public health pretext was obvious: COVID infections were surging in the U.S. but not in Mexico or Central America; Trump was discouraging mask use and downplaying the soaring infection rate in the U.S. while using the pandemic to shut down parts of the immigration system he had been unable to before. Throughout the Trump administration, few migrants were exempt from being expelled under Title 42. Though there was ostensibly a process in place for those seeking asylum in the U.S., in practice it didn’t amount to much—overnight, the U.S. asylum adjudication process virtually shut down, and migrants from all over the world found themselves indefinitely trapped in Mexico. Unlike other Trump-era policies that also trapped asylum seekers in Mexico, such as the Migrant Protection Protocols and metering, Title 42 expulsions meant migrants had little to no chance of ever making it into the U.S. and having their claims processed at all. And like other policies designed to keep migrants in Mexico, Title 42 has been a boon for criminal organizations that extort, kidnap, and harass migrants.

A federal judge eventually barred the Trump administration from applying Title 42 to unaccompanied children, but that decision was later reversed. Under Biden, Title 42 looks a bit different from the categorical asylum shutdown of the Trump era—but different doesn’t mean more logical or humane. The Biden administration has decided not to apply Title 42 to children traveling alone, and has allowed families to enter at some ports of entry. In practice, though, that means some parents are opting to send their children across the border alone and cross over afterwards, often through more dangerous, remote routes.

This spring, the Biden administration began allowing targeted exemptions to Title 42. The exemption process is complex, lengthy, and limited to certain ports of entry. It relies on the cooperation of nongovernmental aid and legal services organizations tasked with determining which migrants are most at risk in Mexico. Put simply, the Biden administration has recreated Trump-era metering at the border with even more hoops for migrants to jump through. It’s asking nonprofit organizations whose mission is to help asylum seekers to decide which migrants are the most vulnerable among the vulnerable. Those migrants’ names are collected, given to the ACLU (or, in other cases, to a consortium of organizations that also work with migrants), which in turn submits the names to CBP. After a waiting period, the migrants who meet the requirements for exemptions are allowed to enter the U.S. at ports of entry to begin the asylum process. This cooperation has been put on pause as the lawsuit against Title 42 resumes.

Under Biden, other groups of families have been let into the U.S. after attempting to cross at or between ports of entry. Like the exemption process, these crossings don’t point to a universal policy change and are only limited to certain Border Patrol sectors. According to some reports, the U.S. has been forced to accept families in certain border regions because the Mexican government refuses to take expelled families back, but this is by no means universal; families continue to be expelled every day. 

Perhaps one of the biggest ironies of Title 42 is that it was more straightforward under Trump, when all but a handful of migrants were categorically turned away. The Biden administration’s attempt to slowly phase out Title 42 has led to chaos at the border, but not in the way conservative critics and cable news pundits claim. Generally speaking, most migrants—especially single adults—were still being expelled even with the exemption process and other caveats in place. But the attempt to create a system that allows some migrants to enter the country while most are still turned away has led to confusion and misinformation among migrants, as well as a general sense that the decision as to who to welcome and who to turn away is largely arbitrary. It has also put legal services organizations in a difficult position; they’re essentially doing the administration’s work for it, or at least they were until they pulled out of the process altogether.

Most critically, Title 42 puts migrants in danger. A recent report by Physicians for Human Rights reiterates what advocates have been sounding the alarm about for over a year now: Title 42 is a risk to migrants’ physical and mental health, as well as their lives.

What’s next?

Clearly, the administration is not planning on terminating its use of Title 42 anytime soon, leaving the litigation against it as the most plausible means for it to end. The emergence of the particularly dangerous and contagious Delta variant of the coronavirus, and the specter of deadlier and potentially vaccine-resistant strains like the Lambda variant will give the administration more ammunition to argue in court that the border restrictions are necessary and appropriate to safeguard public health. Still, that doesn’t fundamentally change the fact that a plain reading of the statutory language itself leaves it very much in doubt whether expulsions are authorized at all, and the administration has yet to truly engage with the question of the order’s conflict with other areas of law.

In practice, a preliminary injunction would probably be national and across the board (if a judge agrees that the plaintiffs are likely to prevail on the argument that Title 42 does not authorize expulsions in this manner, it wouldn’t make much sense to limit an injunction to particular classes or geographic areas). If that happens, what was a near-total entry restriction on asylum seekers will evaporate overnight, which is an extremely delicate situation that the government will have to handle very deliberately and carefully to avoid a scenario that could be dangerous to asylum seekers, overwhelming to local communities and aid providers, and all around chaotic.

Thousands of people who’ve been essentially waiting for a chance to even tender an asylum claim will suddenly have the chance to do so, and odds are that they’re going to all try at once. This is an entirely predictable outcome that the administration doesn’t necessarily seem to be preparing for. If Biden doesn’t prepare, and this eventuality comes to pass, it won’t have the capacity to process these migrants, and could end up resorting to something like the (very illegal) metering policy, where people are turned away and told to come back later. Already, some localities have complained about a lack of resources from the federal government to assist asylum seekers who are even now, with Title 42 in place, often being released at bus stations or other public spaces with little in the way of guidance or assistance.

The alternative to such releases is to massively ramp up immigration detention, a chronically inhumane system that also acts as an incubator for COVID-19. After climbing dramatically in the last few months, the number of immigration detainees nationally has dipped in recent days, but remains far above the level it was when Biden took office. The last thing anyone needs from a humanitarian, public health, and due process perspective is for thousands more asylum seekers to be sent to immigration detention.

To an extent, the administration is already preparing for post-Title 42 life, though not by developing more efficient pathways for asylum processing. Instead, it recently announced that it was expanding expedited removal for families, paving the way for quick deportations when expulsions are no longer on the table. Even with this tool in the arsenal, however, the government won’t be able to categorically deport asylum seekers, only those who are recorded as not having expressed a fear of persecution or who fail their credible fear screenings. It is also likely to provoke an outcry from advocates, though commentators on the right are sure to rake Biden over the coals no matter which direction he goes.

The only real humane solution here would be to massively ramp up processing capacity and streamline the process for migrants to be screened, tested for COVID-19, vaccinated, and provided basic guidance and travel to family or other sponsors in the U.S. That would probably give Tucker Carlson an aneurysm, but the alternative is the type of chaos that his ilk is always ranting about anyway. Biden might not want to end Title 42, but failure to prepare now for its dissolution would be catastrophic negligence.

Under the Radar

Texas Governor Abbott’s anti-immigrant executive order blocked

Gov. Greg Abbott has gone all in lately on utilizing immigration fear-mongering as a springboard for his electoral ambitions. While refusing to enact aggressive countermeasures against the spread of COVID-19 in his state, the governor has embraced blaming migrants for the increasing infection rates, a popular yet baseless recent trend among right-wing politicians and commentators. As part of this effort, late last month he signed an executive order directing state troopers to stop vehicles that were suspected of transporting migrants who had entered the country illegally.

The Justice Department quickly sued the state over the order, which it called unconstitutional. In addition to the operational obstacles that it would place on the federal government’s ability to process and release asylum seekers—a reality that had even the Border Patrol opposing the hardline measure in court—there is no obvious way for state law enforcement to know who is transporting migrants except through overt racial profiling. This week, a federal judge agreed that the order was likely unconstitutional and issued a temporary restraining order blocking it until the next hearing on the case, which is next Friday. At that time, the judge may issue another, more extensive order, or let the policy stand as it is litigated. In the meantime, the ACLU is also suing Texas over Abbott’s order.

Next Destination

Biden administration expands citizenship eligibility for children born abroad to same-sex couples

U.S. Citizenship and Immigration Services has changed the definition of “in wedlock” to allow children born to same-sex couples abroad to qualify for citizenship. Children born abroad to U.S. citizen parents who were conceived via surrogacy or other forms of assisted reproductive technology will now be considered as having been born “in wedlock,” meaning they will automatically qualify for citizenship. 

Under previous requirements, USCIS required a child’s “genetic parents” to be married to each other in order for the child to derive citizenship from them. The new rules require a child’s legal parents to be married to each other, and for at least one of those parents to have a “genetic or gestational relationship to the child.”