WASHINGTON (HPD) — Since the COVID-19 pandemic began, the United States has been using a public health rule designed to limit the spread of disease to expel asylum seekers at the border with Mexico.
It’s called Title 42, and it has been used more than 2.5 million times to expel migrants since March 2020, though that number includes people who repeatedly tried to cross the border.
The Supreme Court indicated in a ruling Tuesday that it will keep Title 42 in effect indefinitely. The case will be submitted for discussion in February, and the asylum restriction measure will remain in force until the judges make a decision on the matter.
In November, a federal judge ruled that immigration authorities could no longer use Title 42 to expeditiously remove asylum seekers and set a December 21 deadline for it to stop applying. That sparked a legal tussle, with a group of conservative-leaning states pushing to keep Title 42 in effect, and the federal government and immigrant rights activists saying it’s time to suspend it.
The change comes at a time when increasing numbers of people are trying to enter the country through the southern border, and when Republicans are determined to make immigration a crucial issue when they take control of the House of Representatives in January. .
Here’s a look at Title 42 and the potential impact of the ruling:
HOW IT BEGAN
In March 2020, the Centers for Disease Control and Prevention (CDC) issued an order to limit immigration across the country’s northern and southern borders, arguing that it was necessary to reduce the spread of coronavirus. COVID-19 was wreaking havoc in the United States, schools were closing and hospitals were overcrowded, and President Donald Trump was trying various strategies to limit immigration, a hallmark of his policies.
The order authorized Customs and Border Protection to immediately remove migrants, including people seeking asylum, in order to prevent the spread of the virus. The order noted that often the areas where migrants were detained were not designed to quarantine people or allow for social distancing, which could put border personnel and others at risk.
“The risks to public health from inaction are marked,” he said.
The government of President Joe Biden maintained that policy. Although many Democrats pressed Biden to repeal Trump’s anti-immigration measures, some — especially in border states — have advocated keeping Title 42, saying the United States is not prepared for an increase in asylum seekers. When the CDC moved to suspend him this year, some moderate Democrats, including Sens. Mark Kelly and Raphael Warnock, wanted him to stay.
THE FIGHT IN THE COURTS
In 2021, a group representing immigrants denied the right to apply for asylum sued to end the use of Title 42.
As that lawsuit made its way through the courts, the CDC announced in April that the rule was no longer necessary because access to vaccines and treatments was becoming much more widespread.
That prompted Republican-leaning states to file their own lawsuit to keep Title 42 in effect. They argued that ending the rule would lead to an increase in migrant arrivals in those states, which in turn would have a impact on your services. That argument was backed by a Trump-appointed judge in Louisiana who ordered the restrictions upheld. The judge found that the Biden administration failed to follow administrative procedures that require notifying the public and allowing time to gather public feedback on the plan to end the restrictions.
But that ruling was blocked by another federal judge in a separate lawsuit in Washington. That judge, appointed by Democratic President Bill Clinton, ruled on November 15 that the Biden government must lift the asylum restrictions by December 21. That ruling, which addresses broader questions about Title 42, prevailed over the Texas judge’s ruling, which pleased immigrant advocates. In a crucial development, the federal government did not appeal to keep the public health restrictions in place.
“The court was right to find that banning (the entry of) migrants, while allowing the rest of the country to open its borders, is unlawfully arbitrary, causes serious harm to desperate asylum seekers, and disregards the legal commitments of United States to provide a safe haven for those fleeing persecution,” said Lee Gelernt, an attorney with the American Civil Liberties Union.
But a group of conservative states tried to intervene to keep Title 42 in effect. They argued that the cancellation of that pandemic policy “will cause a huge disaster at the border,” and the additional migrants that enter will generate an increase in the costs that states pay for policing, education and health services. They have also argued that they had to intervene after the federal government failed to push Title 42 to continue to apply. The case has gone all the way to the Supreme Court, which last week ordered Title 42 to continue temporarily so that the highest court could thoroughly consider the arguments of both sides.
The Supreme Court’s decision on Tuesday extended the temporary stay indefinitely and set a February schedule for hearing arguments.
DOES TITLE 42 AFFECT ALL ASYLUM SEEKERS?
Not really. The Biden administration has not used it with children traveling alone, but only with single adults and families. And the prohibition has been applied unevenly according to nationality, falling mainly on migrants from Guatemala, Honduras and El Salvador —in addition to Mexicans_, because Mexico allows them to be returned to its territory from the United States. Last month, the Mexican government began accepting Venezuelans who are removed under Title 42, causing a sharp decline in the number of Venezuelans seeking asylum at the southern US border.
Some other nationalities are less likely to be subject to Title 42 because of costs or strained relations with their home countries — Cuba, for example — making it difficult for Washington to deport them there. There are more and more people from those countries on the northern border of Mexico, who trust that they will be released in the United States to follow up on their immigration cases.
According to the most recent figures released by Customs and Border Protection officials, illegal border crossings by Cubans and Nicaraguans increased sharply in November, while overall migration flows were little changed from October.
WHAT WILL HHPDPEN IF TITLE 42 IS SUSPENDED?
If it is cancelled, asylum officers will interview applicants and determine if they do have a “credible fear” of persecution in their home countries. If they are found to face a credible threat, they may remain in the United States until a final decision is made.
That can take years. Although some remain detained while their asylum application process is resolved, the vast majority are released into the United States with notices to appear before an immigration court or report to immigration authorities.
The Department of Homeland Security (DHS) indicated in a memo outlining its preparations for the end of the use of Title 42 that the current system is not designed “to handle the current volume of migration nor the increase in volume that we anticipate in the coming weeks and months.”
He said he is preparing for a possible surge by cracking down on smuggling rings, expediting the removal of people determined to have little basis to remain in the United States, and working with international partners to stem the flow of migrants. He noted that he, too, is asking Congress for more money. Meanwhile, after temperatures plummeted last week, thousands of migrants gathered on the Mexican side of the border waiting to see what will happen when the use of Title 42 comes to an end, if it is actually lifted.
Republicans, who will control the House of Representatives starting in January, are expected to make immigration a priority issue. There have already been calls for the Secretary of National Security, Alejandro Mayorkas, to be impeached.
Some Democrats have also raised concerns about what will happen when Title 42 is suspended. In a letter to Biden this week, Sen. Joe Manchin and Rep. Henry Cuellar joined two Republicans — Sen. John Cornyn and Rep. Tony Gonzales — in calling on the president to keep Title 42 in effect, telling him there is a crisis. at the southern border and DHS has not submitted a plan to maintain control there.
Santana is on Twitter as: @ruskygal.