Title 42- The border policy that is blocking people seeking asylum

By Azadeh Erfani

In recent weeks, the headlines have been full of contradictory news about Title 42 , the so-called “public health” border measure that allows the government to turn back or expel people arriving at the U.S. border seeking asylum.

After nearly two years of this inhumane policy begun during the Trump administration, the Biden administration has finally announced the termination of the program on May 23, 2022 .

The program has caused enormous humanitarian harm. It allowed U.S. border officials to turn back more than 1.2 million people between February 2021 and February 2022 alone, sending those seeking protection into often-volatile border cities where they can be kidnapped, raped, and extorted by those ready to take advantage of disoriented and desperate migrants. In addition, the rapid expulsion of families can lead to devastating consequences including family separation. The National Immigrant Justice Center (NIJC) has worked with people who've experienced all of those atrocities because of Title 42.

So why do we have this policy to begin with?

The entire concept of an “expulsion” under Title 42 was invented by the Trump administration in March 2020, when former Vice President Mike Pence and Trump top aide Stephen Miller strong-armed the Centers for Disease Control and Prevention (CDC) to use public health justifications to shut down the border. Experts found no public health rationale for this ban on asylum seekers, 91.9 percent of whom could have sheltered in place with loved ones like the rest of the country’s residents. With few exceptions and despite litigation, the CDC renewed Title 42 for the two years that followed, even as the country saw lulls in COVID-19 numbers and loosened masking and gathering restrictions.

The real reason for the associations between migrants and disease go back to some of the earliest tenets of white supremacy. In the 19th century, lawmakers groomed the ideology that immigrants may carry “loathsome and contagious disease.” This view — predicated on racist, classist, and ableist stereotypes — laid the groundwork for selective medical screenings, deportations, and eugenics in the 20th century. Immigration became synonymous with contagion and a threat to domestic welfare. We can see these patterns continuing with the policies enacted against Haitians during the height of the HIV epidemic, and more recently, with the way U.S. Department of Homeland Security Secretary Mayorkas called on border patrol to exempt Ukrainians from Title 42 expulsions, a necessary grace that has not been granted to refugees fleeing non-European countries.

Unfortunately, these policies continue to have their supporters as well. A growing number of members of Congress have called for the Biden administration to continue Title 42 expulsions as a border management tool, fearing a predicted increase in migration. Recent reports have emerged that the White House may delay the end of Title 42.

These statements make clear once more that public health never informed the decision to implement Title 42. They also ignore the United States’ decades of experience processing asylum seekers prior to the pandemic and border communities and nonprofits’ long history of welcoming migrants seeking refuge.

NIJC applauds the Biden administration for ending this clearly harmful program and urges the administration and members of Congress to stay the course and end Title 42 and resume asylum processing at the border. After two years of working with clients who have suffered under Title 42, we’re looking forward to a future in which we can count on the United States to meet its obligations towards asylum seekers, and provide the kind of haven the U.S. has often prided itself on being.

"Backpedaling the rescission of Title 42 makes the Biden administration further complicit with a racist policy that was designed as an attack on the very foundations of refugee protection policy."

-NIJC Executive Director Mary Meg McCarthy

Border communities and service providers have rejected any further delay in ending Title 42 and stand ready to welcome asylum seekers. U.S. Customs and Border Protection has clarified that the agency is fully equipped to secure and manage our borders while building a fair and orderly immigration system, pointing to the billions in funds already appropriated by Congress to improve border processing. Existing border reception centers work tirelessly to provide arriving families voluntary respite and social support services, COVID-19 testing as needed, orientation to the asylum system, and assistance with securing safe transportation to their final destinations.

That’s why, as the United States contemplates whether or not to meet our obligations to the asylum seekers coming to our country, we need you to be vocal to remind our lawmakers to support the termination of Title 42.

TAKE ACTION: We’ve set up a tool that allows you to easily send an email and call your members of Congress and urge them to support ending Title 42. Tell your members of Congress to support ending Title 42!

If you want to learn more about Title 42 and why we must stop expelling people at the border, check out NIJC's FAQ about Title 42 .