Emma Fullerton '22
Under the FDR administration, Congress passed Title 42, a provision within the 1944 Public Health Service Act that allows the federal government to ban people or goods from entering the U.S. during a pandemic (CBS). Seventy-six years later, President Trump enacted this provision as COVID-19 swept through the nation in March 2020.
Title 42 supersedes asylum law and allows U.S. border agents to immediately expel migrants, even if they make an asylum claim that would normally allow them to remain on American soil. Thus, Title 42’s invocation enabled U.S. Customs and Border Protection (CBP) officials to deport nearly every undocumented immigrant. Since March 2020, the Trump and Biden administrations have expelled 1.7 million migrants under Title 42, with Biden being responsible for 1.2 million of them (CBS).
In April, Biden announced he would end Title 42 on May 23rd, a decision that the GOP and a handful of democrats emphatically denounced. As Biden faces pressure from the left to uphold his various immigration reform promises and protect undocumented migrants, will his repeal of Title 42 achieve these goals, or will it exasperate the ongoing crisis at the southern border?
Those in favor of Biden’s rollback claim Title 42’s purpose—to protect public health—is irrelevant today as the pandemic seems to be waning. As mask mandates and social distancing guidelines are lifted across the country, the anti-Title 42 movement asserts that it would be hypocritical of the government to not also lift similar measures for migrants. Further, some of those against Title 42 question the provision’s effectiveness in preventing the spread of coronavirus. Dr. Fauci argues that Title 42 is not the solution to stopping COVID outbreaks and instead helps spread the virus as expulsions in large groups lead to outbreaks during deportation transport (American Progress).
Conversely, supporters of Title 42 affirm that the order is still necessary for protecting public health. While COVID cases may be currently decreasing in America, it still poses a significant global threat. The Chinese government just recently enforced strict lockdown measures in Shanghai due to a significant outbreak within the city (The Hill). Foreign outbreaks like this explain why there are still numerous travel-related COVID rules in the U.S., such as mask mandates on planes and mandatory tests for international travelers (Washington Post). Title 42 advocates pose the question, why should undocumented migrants be allowed to enter the U.S. without a negative COVID test while legal international travels are barred from entering without the same result? Their answer is simple: they shouldn’t be.
Another issue some take with Title 42 is its undermining of asylum law. Under asylum law, undocumented immigrants can petition to temporarily stay on U.S. soil should they make a credible claim that they are facing persecution or significant danger in their country of origin (Cornell). However, migrants lost this opportunity when Title 42 went into effect, and many were deported to their home countries within days of arriving in the U.S. The most notable example of this was the mass expulsion Haitian migrants during the summer of 2021. Following the assassination of the Haitian president in July and a major earthquake in August, a large wave of Haitian migrants fled to the southern border. Biden expelled 20,000 Hattians under Title 42, subjecting them to the political chaos that would normally grant them a path to asylum in America (American Progress).
However, Title 42 supporters make the case that ending Title 42 would harm migrants more than denying them asylum currently does. Since Biden took office, he has dismantled many Trump-era border policies that have helped manage and deter surges of migrants at the border. These policies include the “Remain in Mexico” program that allowed migrants to wait in Mexico while their asylum claims were processed in the U.S. and the “safe third country agreements” which allowed migrants to negotiate asylum in the first country they crossed into rather than in America. Both of these policies, along with Title 42, deterred hundreds of thousands of migrants from making the extremely dangerous journey into the U.S. After Biden repealed these policies, there was a significant spike in undocumented immigrants. In June 2021, the number of migrants at the southern border “hit a record high” and was more than double the previous year’s total (BBC). 2021 also saw the highest number of migrant casualties, 650, since 2014, which is undoubtedly linked to the migrant surge Biden incentivized with his policy repeals (CNN).
Further, this flood of undocumented immigrants has had unintended yet negative consequences on American citizens. Unfortunately, the flood of fentanyl is coupled with the floods of migrants, as drug cartels take advantage of migrant surges to overwhelm U.S. border officials (The Hill). Fentanyl seizures at the southern border increased 1,066 percent in 2021, according to the CBP. Further, fentanyl-related overdose deaths have increased by thirty percent and have killed more Americans than guns and homicides during the last year (Washington Post).
The Title 42 debate will be a hot-button issue going into the November mid-terms. According to a recent Politico poll, fifty-six percent of voters oppose ending the provision. This contentious decision, which has received bipartisan opposition, could prove to be a fatal blow to Biden’s already sinking approval rating. And, worse than any political implication for the Biden administration, Title 42’s repeal could have dangerous consequences for migrants and American citizens.
“8 U.S. Code § 1158 - Asylum.” LII / Legal Information Institute, https://www.law.cornell.edu/uscode/text/8/1158. Accessed 16 Apr. 2022.
Alvarez, Priscilla. “At Least 650 Migrants Died Crossing the US-Mexico Border, the Most since 2014, International Agency Says | CNN Politics.” CNN, 9 Dec. 2021, https://www.cnn.com/2021/12/09/politics/migrants-dying-crossing-us-mexico-border/index.html.
“Biden Administration Announces Official End to Title 42, the Trump-Era Pandemic Restrictions at the US Border | CNN Politics.” CNN, 1 Apr. 2022, https://www.cnn.com/2022/04/01/politics/immigration-title-42-repeal-cdc/index.html.
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Barragán, James. “Beto O’Rourke Knocks Biden for Ending Title 42 without a Plan to Deal with Influx of Migrants.” The Texas Tribune, 12 Apr. 2022, https://www.texastribune.org/2022/04/12/beto-orourke-joe-biden-border-migrants/.
Bolter, Muzaffar Chishti, Jessica Bolter Muzaffar Chishti and Jessica. “Controversial U.S. Title 42 Expulsions Policy Is Coming to an End, Bringing New Border Challenges.” Migrationpolicy.Org, 30 Mar. 2022, https://www.migrationpolicy.org/article/title-42-expulsions-policy.
“CBP Officers at South Texas Ports of Entry Post Significant Increases in Fentanyl, Cocaine Seized in FY 2021.” U.S. Customs and Border Protection, https://www.cbp.gov/newsroom/local-media-release/cbp-officers-south-texas-ports-entry-post-significant-increases-0. Accessed 16 Apr. 2022.
“Ending the Title 42 Expulsion Policy Is the Right Thing To Do.” Center for American Progress, https://www.americanprogress.org/article/ending-the-title-42-expulsion-policy-is-the-right-thing-to-do/. Accessed 16 Apr. 2022.
“Fentanyl Seizures at U.S. Southern Border Rise Dramatically.” NBC News, https://www.nbcnews.com/politics/immigration/fentanyl-seizures-u-s-southern-border-rise-dramatically-n1272676. Accessed 16 Apr. 2022.
Ira Mehlman, Opinion Contributor. “We Still Need Title 42 at Our Border to Protect Public Health.” The Hill, 11 Apr. 2022, https://thehill.com/opinion/immigration/3262048-we-still-need-title-42-at-our-border-to-protect-public-health/.
“Opinion | Biden Is Turning a Border Crisis into an Outright Catastrophe.” Washington Post. www.washingtonpost.com, https://www.washingtonpost.com/opinions/2022/04/12/biden-title-42-border-crisis/. Accessed 16 Apr. 2022.
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