Newsletter #1- Yelling about Title 42
This piece is part of the first issue of a newsletter that I started as an immigration lawyer to provide context and commentary to what is happening with US immigration policy and what we see in the news. Feel free to share and let anyone know if they want to get my newsletter they can sign up here.
Lately, as anyone who has dared ask me even the most innocuous question about the headlines concerning the border knows, all I want to do is yell/lecture about Title 42. The yelling is mostly to attempt to overcome the noise around child migration, which is incredibly important noise, but tends to divert a lot of attention from other parts of the whole picture of American border policy, parts that can help us add color to our understanding of what is happening everyone and not only the littlest and most vulnerable kids whose pictures we see across the media. Title 42, for those who don’t know (which is completely understandable because it has received almost no coverage) is the public health order that has closed the US border for the last 13 months. After a year of personally preaching compliance to public health orders, it does feel a little strange to be railing against one, but Title 42 deserves our wrath because it is largely a convenient pretext to keep migrants out of the country and doesn’t do much to keep anyone safer. If you are trying to make sense of the current hub-bub around unaccompanied children on our border or wrap your head around the Biden’s administration’s approach to border policy in general, Title 42 is a great place to start.
In March of 2020, about a week into the pandemic as most Americans experienced it, the Department of Health and Human Services issued an emergency order related to Section 265 of U.S. Code Title 42 that allows the CDC to prohibit the “introduction” of people into the country when there is a serious risk of spread of communicable disease. Part of the whole thing is that Customs and Border Protection can enforce this order by closing the ports or expelling people who try to enter the US. It doesn’t apply to US Citizens or Green Card holders. The effect is that the border is shuttered to anyone who wants to migrate to the United States. This may seem attractive to Americans who are worried about the levels of people coming to the US without visas, but it has also shut down the ability to seek asylum, which, and I can never ever say this enough, is completely legal. Now thousands and thousands and thousands and thousands of people who would otherwise be able to seek refuge from persecution with due process just can’t.
*Quick sidebar for anyone who might need a primer about seeking asylum in the US: It is a right long established under U.S. and international law that someone who is fleeing persecution in their home country can come to the US and apply for asylum. There is a lengthy and ridiculously complicated legal process to actually win asylum but the right to ask exists for anyone who can make it to the U.S. whether it is by lining up at the same ports of entry that people use to come home from trips to Mexico or crossing the border between ports and declaring your intention to seek asylum upon your first encounter with border patrol. Both ways of asking for asylum are completely sanctioned by law. Another important thing to know is that there are no other ways to ask for protection from persecution in the Americas. There are no refugee camps. You have to leave. You have to move. This is why the prospect of the wall has never made sense to control the flow of individuals who are seeking protection from persecution.
On its face, Title 42 could make sense to control the spread of COVID-19, especially considering that people who migrate are often held in congregate settings like border patrol stations or detention centers. But remember that when it was issued it was also the tail end of the Trump administration and turned out to be a perfect way for Stephen Miller to finally close the border to migration. The Trump administration had spent the last three years throwing every policy at the wall, no matter how cruel, to dismantle the right to ask for asylum or, at least, make it so dangerous that people would give up. And Title 42 has worked to that end. There is no way to approach a port of entry and if people are caught then they are either expelled back into Mexico or sent to their home countries — although, to be fair, some people make it through and it isn’t always clear why (one reason is, of course, to keep up the contracts with private detention centers). As a result, people are living in hellish situations in shelters and the streets of Northern Mexico waiting for Title 42 to be lifted. It’s incredibly galling to have this all presented in the name of “public health” because people are being forced into extraordinary unhealthy situations and also because throughout the entire pandemic ICE has been detaining immigrants in our filthy and unsanitary internal detention centers without the slightest regard for human life. It’s a hard pill to swallow that the State of Texas, for example, is deeply concerned about the spread of COVID-19 at our ports of entry when Governor Greg Abbott’s public health orders allow people to hang out maskless in bars.
Sadly, the Biden Administration is digging into the doublespeak around Title 42 as it remains strictly in place without any indication of when it will be lifted, even as our country is hurtling towards herd immunity. One key change that they did make was that they stopped expelling unaccompanied children, which is one of the central reasons for the large numbers of UAC’s in government custody this spring. Families who fear expulsion or deportation to their countries now can at least send their kids ahead into the US confident that they will make it to safety through the Office of Refugee Resettlement. That sending their children to the US alone is some parents’ best option essentially makes Title 42 a family separation policy. No, the government is not forcibly ripping children from their parents arms but when splitting up is the safest choice, what is the difference? Biden certainly has a political problem on his hands because he has vowed to restore humanity to the border but his administration is quickly learning just how complicated the situation is and, unfortunately, doubling down on the Obama era thinking that deterring people from coming to the US through cruelty might be the most strategic way to save face.
Where is this all heading? It’s hard to say except that Title 42 can’t stay in place forever. When it is lifted and suddenly there is no longer pretext to categorically deny the right to seek asylum, there is going to be an enormous number of people who will exercise their legal right to seek refuge in our country and there is going to need to be a very good plan to process them humanely. Top Biden officials acknowledge this need for humane processing. But they are also really leaning into the message that “now is not a good time to come to the United States”. It’s hard to nail down exact reasons why people migrate, but Central America is already an extremely violent and impoverished place and this year also got hit hard by the pandemic, not to mention several hurricanes. Which is all to say: now also might not be a good time to stay in Central America. Or Haiti. Or Brazil. Or Cuba. Or any country where life untenable for some people right now. The Biden Administration is making big hay about addressing the root causes of migration inside sending countries, which is a sensible but also a lengthy proposition that may not sync with the urgency to flee. In the meantime the Biden deterrence strategy has also moved to making agreements with Mexico and Central American countries to militarize migration routes. When Title 42 is lifted, there will be a lot of breathless coverage by the media of the sheer number of people and it will be described as a “crisis” or a “surge” by both sides of the political spectrum. One side will want us to feel nativist fear and the other will want us to sign off on inevitable human rights abuses because of how complicated and untenable such a high number of apprehensions is. Those of us in the know will see this for what it is: a crisis of our government’s own making that is going to be worse the longer the Biden administration kicks the Title 42 can down the road.
Now imagine me screaming this all at you and you will know the pain my family and close friends have felt these last few months.
If you want to read more about all of this I can recommend these pieces:
