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Despite the End of Title 42, Restrictions on Asylum Seekers Are Expected to Continue Under Biden Administration

Credit: iStock
A Venezuelan asylum-seeker carries his daughter before they cross the Rio Grande into Brownsville, Texas. Veronica G. Cardenas/AFP via Getty Images

Ernesto Castañeda, American University

A Trump administration immigration order, Title 42, that allowed U.S. border officials to quickly expel migrants at the U.S. southern border – with no exceptions for asylum-seekers – expires May 11, 2023. But its legacy of restricting asylum petitions may continue as President Joe Biden takes steps to reduce the flow of illegal immigration to the country.

Officially called Title 42 of the U.S. Code, the little-known law was written in 1944 to prevent the spread of influenza and allow authorities to bar entry to foreigners deemed to be at risk of spreading the disease.

In March 2020, on the recommendation of the Centers for Disease Control and Prevention, then-President Donald Trump invoked the law to minimize the impact of the COVID-19 pandemic.

While the Trump administration was reluctant to impose federal lockdowns or mask mandates at the start of the pandemic, it was aggressive in its use of Title 42 to close the border to many migrants, including people fleeing from persecution and planning to apply for asylum.

As written, Title 42 of the U.S. Code allows for the “suspension of entries and imports from designated places to prevent spread of communicable diseases.”

In practice, the law enabled U.S. law enforcement officers to immediately deny entry to asylum-seekers and other migrants.

Trump and his advisers used this law to advance their goal of restricting the number of new immigrants.

In fact, U.S. District Judge Emmet Sullivan ruled in November 2022 that the Trump administration’s implementation of Title 42 was “arbitrary and capricious” and blamed the CDC for failing to come up with reasonable alternatives.

As an immigration researcher and expert on international borders, I have followed border crossing trends and the effects of Title 42 since it went into effect.

By itself, the end of Title 42 will not weaken border security, as many conservative politicians and commentators have claimed. Nor, in my view, will it mean that the U.S. has open borders – despite the recent surge of asylum-seekers at the U.S. southern border.

More than a million migrants expelled

During the height of the COVID-19 pandemic, around 51% of the people encountered at the border were immediately expelled or put into removal proceedings as a result of Title 42.

U.S. Customs and Border Protection reported that over 1 million people were denied entry under Title 42 alone in each of the 2021 and 2022 fiscal years.

After being sent back, many often tried to enter again and, as a result, inflated the counts of border encounters. Others were expelled under Title 8, which will continue to be used to deport people after taking their information.

For its part, the Biden administration expected the end of Title 42 and has already dispatched 1,500 active-duty troops to the U.S.-Mexico border to help shut down illegal border crossings. In addition, Biden’s new plan would make any asylum claim ineligible unless migrants first applied in another country they had passed through.

The number of border encounters may decline without Title 42

In my view, after some months, the lifting of Title 42 will actually result in a decrease in the official number of encounters at the U.S. southern border because fewer people will be asking for asylum there and counted multiple times.

As a result, the bottleneck created by the pandemic border closure to asylum-seekers will eventually ease.

What is critical to understand is that the end of Title 42 in itself does not change the root causes of migration.

Political and economic conditions in Haiti, Cuba and Venezuela have forced many families to flee to the U.S., as has the widespread, unchecked organized crime in certain regions of Mexico and Central America.

But recent measures established by the Biden administration suggest that people will face more – not fewer – difficulties in obtaining asylum in the U.S. after the end of Title 42. People now have to get an appointment using the CBP One app and may also need to apply and be denied asylum at one of the safe countries they pass through on the way to the United States.

As partisan debate over immigration policy rages on, it is important to remember that Title 42 was originally designed to prevent the spread of a highly contagious disease – not to deny people their legal right to make a claim for asylum in the U.S.

This article relied on reporting originally published on Dec. 15, 2022.

Ernesto Castañeda, Associate Professor of Sociology, American University

This article is republished from The Conversation under a Creative Commons license. Read the original article.