Title 42’s reversal creates asylum hurdles
Unless a last-ditch effort by Texas and 14 other states succeeds, the Biden administration has less than a month to restore asylum policies at the U.s.-mexico border after a federal judge invalidated the Trump-era Title 42 public health policy, enacted in 2020, that allowed for the rapid expulsion of migrants arriving at the southern border under the guise that it would simply help prevent the spread of COVID-19.
The decision could end up making border enforcement harsher for some migrants without valid asylum claims, though it received overwhelming praise from immigration attorneys and advocates in Texas.
“I’m elated,” said Houston immigration attorney Ruby Powers, who believed the decision was a long time coming. “This is a policy that’s being erroneously applied to expel people.”
Texas stands to be the state most affected by the overturning of one of the Trump administration’s most consequential border policies, considering it shares the largest area of the southwest border with Mexico, has the largest number of ICE detention centers and Border Patrol stations. And some of its cities are top destinations for immigrants from the Northern Triangle, Mexico and Venezuela, who have been subject to Title 42 expulsions.
Earlier this week, Texas joined a coalition of conservative-leaning states to file what’s known as a motion to intervene — meaning they want to become part of the legal proceedings surrounding the public health rule referred to as Title 42. They argued that states such as Texas that border Mexico as well as other states away from the border will face more immigration if use of Title 42 ends. The legal filings lay out a timeline to argue the matter further.
Currently, the administration has a court-ordered deadline of Dec. 21 to end enforcement of Title 42.
While some may perceive the return to the pre-trump asylum system to mean more relaxed border enforcement, immigration experts said that doing away with Title 42 expulsions may actually bring harsher consequences for migrants without valid asylum claims, including increased time in detention and having an official deportation on their record.
“Most of the people that are being expelled under Title 42 are likely to be subject to an expedited removal hearing,” said Doris Meissner, former commissioner of the U.S. Immigration and Naturalization Service and fellow at the nonpartisan think tank Migration Policy Institute.
“If those expedited hearings go into place immediately when Title 42 is lifted, it’ll be very clear very quickly that this is not a new opportunity,” said Meissner, who said that at first glance, it could be easy for a potential migrant to perceive the end of Title 42 as a chance to get into the United States.
She added that many of the people arriving recently with valid asylum claims were likely getting allowed into the U.S. through government exemptions.
Senior U.S. District Judge Emmet Sullivan, who is based in Washington, D.C., found the government’s suspension of asylum laws under CDC health code “arbitrary and capricious.” He granted the government five weeks to transition out of Title 42 and into PRE-COVID-19 asy
laws, setting a deadline of Dec. 21.
Human rights advocates, migrants and immigration attorneys criticized the blanket policy as inhumane and overreaching as it served as a convenient tool for both Trump and Biden to swiftly control the historic number of border crossings.
Title 42 used the federal health code as a rationale to bypass the mandated asylum process, which typically involves screenings or “credible fear interviews.” Under status quo border policies, applicants whom judges said did not have valid asylum claims were subject to “expedited removal” from the country, a deportation process that went on a person’s permanent record, sometimes carried criminal charges and prohibited future entry into the U.S. either permanently or temporarily. Expulsions under Title 42 did not carry the same legal consequences for migrants.
Under Title 42, recidivism rates — repeat border crossings — increased to 27 percent in 2021 up from 7 percent in 2019, pretitle 42.
Between the two administrations some 2.4 million migrant encounters were subject to Title 42 expulsions since March 2020, according to U.S. Customs and Border Protection data. Roughly half of those took place in Texlum
as, including when the government flew thousands of Haitians camped out in Del Rio back to Haiti, even though many hadn’t lived there for several years.
Amid this win for immigration advocates, lawmakers and politicians in Texas continue to advocate for seemingly hardline policies. In the first week of filing for the 2023 Texas Legislature, lawmakers submitted multiple bills aimed at cracking down on border crossers. Gov. Greg Abbott posted statements on Twitter recommitting to aggressive border security. And the state continues to bus migrants to U.S. cities, a political ploy that has counterintuitively benefited migrants who opt for the free ride.
Though the judge’s ruling restores access to asylum at the border, the system still remains overwhelmed by cases, which delays decisions for both valid and meritless immigration cases. Migrants will continue to face challenges even as new judges are added to backlogged immigration courts. And swiftly handled cases may not be the solution either. A program that fasttracked asylum cases in the Houston area led to low representation rates, negatively affecting the likelihood of winning their cases, revealing a central tension in any effort to address the deluge of asylum cases — a fast trial is often not a fair one.
Houston Immigration Legal Services Collaborative director Zenobia Lai said “it’s about time” that Title 42 ended, because of how it violated asylum laws. That said, she continues to worry about the treatment of migrants arriving at the border.
“The fear that I have is that people may not be expelled, but if they are being allowed to cross and if they are not being expeditiously removed, they will be detained,” Lai said. “My worst fear is that it will explode the detention population.”
How exactly the Biden administration will go about restoring asylum law is unclear, but in the short term a public end to Title 42 will likely create the perception of a more open immigration system, making it easier for smugglers to profit off of desperate people abroad. The Department of Homeland Security appears to be trying to get ahead of that misconception.
“People should not listen to the lies by smugglers who will take advantage of vulnerable migrants, putting lives at risk,” read a Department of Homeland Security statement regarding the end of Title 42. “The border is closed, and we will continue to fully enforce our immigration laws at the border.”
On Tiktok, a couple of popular accounts already have encouraged people to take advantage of the end to Title 42 to immigrate, though the majority of official news accounts shared on social media have accurately reported that the border remains closed to people without valid asylum claims.
“What will the new world look like after December 21st? I’m not sure,” said Houston attorney Powers, “but I think it’s going to involve a lot more people coming to the United States.”