Is Biden ending Title 42? War in Ukraine reignites debate over a pandemic border policy – San Francisco Chronicle

A Customs and Border Protection officer returns documents to a Ukrainian refugee at the San Ysidro port of entry in San Diego County on March 24. Journalists and immigration attorneys say they are seeing Ukrainians without visas being allowed to cross the border into the U.S. while migrants from other countries are still being denied under a public health policy known as Title 42.
A woman and her children from Mexico wait at the San Ysidro port of entry alongside Ukrainian refugees last Thursday. The single mother, who said she and her children were fleeing a home of abuse, were not allowed to cross into the U.S. and pursue asylum.
TIJUANA — Carrying a folder of documents and clutching her young son’s hand, the woman from Guerrero approached the gate and asked in Spanish how she could enter. With her other children a short distance away, the mother of four explained they were escaping cartels that had threatened her at gunpoint.
U.S. Customs and Border Patrol officers waved her away.
It was a hectic mid-March morning at the San Ysidro border crossing, where Ukrainians and Russians fleeing the war between their countries joined other migrants seeking passage into the United States. A local Tijuana official eventually told the mother from Guerrero that the U.S. was closed to migrants and suggested she go to a shelter. Yet journalists and immigration attorneys are witnessing people with Ukrainian documents being allowed to cross without visas, while people from other countries are denied the same treatment.
The official reason is a public health policy that the Trump administration invoked at the start of the pandemic and that the Biden administration signaled on Wednesday it will finally wind down. Called Title 42, the policy authorized federal immigration authorities to quickly expel asylum seekers to countries that will take them and to block migrants from entering the U.S., despite there being a right to make asylum claims.
But federal immigration data shows that Title 42 is not enforced equally.
Before the war in Eastern Europe, more than 13,000 people from Russia, Ukraine, Romania and Turkey circumvented Title 42 and made their way into the U.S. through the southwest border from October 2021 through February. Only 35 people from those countries — or just over a quarter of a percent — were sent back.
Of the more than 14,000 people from Haiti who attempted the same passage over the same period, nearly 6,800 were expelled under the color of Title 42.
“Many other migrants who are running for their lives in the same way that Ukrainians have been are not being allowed into the U.S. to seek asylum,” said Jessica Bolter, an analyst with the Migration Policy Institute in Washington, D.C. “It really does demonstrate the arbitrary nature of which asylum claims are allowed to proceed under Title 42.”
Noel, 22, a recent arrival from Haiti, looks on as visa holders are allowed to cross into the U.S. at the San Ysidro port of entry from Tijuana. He’s been staying in a shelter for two months hoping to be allowed into the U.S. to pursue an asylum claim.
Julia Neusner, a refugee-protection attorney at Human Rights First, spent the past week monitoring the situation at the San Ysidro border. On her first morning, she observed some 20 Ukrainian refugees file through concrete barricades into the U.S. She watched a family from Michoacan, who told her of death threats from organized gangs that had killed other relatives, try to do the same. Neusner said U.S. border authorities turned back the mother, father and their two young children.
“Ukrainians absolutely should be welcomed into the United States,” Neusner said. “But I think the fact that Ukrainians who arrive at the southern border are just being so readily admitted to the United States really undermines the administration’s claim that Title 42 is about public health.”
A White House spokesperson told The Chronicle earlier this week that Title 42 is still in effect and, “as such, anyone attempting to enter the country unlawfully — regardless of country of origin — will be subject to border restrictions including possibly expulsion.”
The federal government’s own tracking shows Title 42 is applied disproportionately.
From October 2021 through February, U.S. Customs and Border Protection used the public health policy to expel nearly 427,000 migrants encountered at the southwest border, including 269,000 people from Mexico and 144,000 people from the Central American countries of Guatemala, Honduras and El Salvador.
One of the reasons 97% of expulsions involve people from four countries is because Mexico has agreed to accept them, Bolter said, making it easier for the U.S. to turn them back across the border rather than arrange flights to their home countries, which requires coordination with their governments and is more resource-intensive.
But logistical challenges don’t seem to apply when it comes to Haitians, who were sent back to a country devastated by natural disasters and political turmoil at a 47% expulsion rate over the past five months, Customs and Border Protection figures show.
Outside of Mexico and the three Northern Triangle countries, “there’s only one country with a significant migration flow to the U.S.-Mexico border that has a rate of expulsion above 10% — and that’s Haiti,” Bolter said. “It seems as though the U.S. has decided to expend these limited resources on Haitian expulsions rather than expulsions of some other nationalities.”
Over the past two years, shelters in Mexican border states have filled to capacity with migrants contemplating their next move. On March 21, the two-year anniversary of Title 42’s implementation, migrants marched from Tijuana shelters to the San Ysidro border demanding an end to the policy. In San Francisco, protesters gathered outside a federal building where they called the policy racist and discriminatory.
Three days later, Noel, a 22-year-old Haitian man, approached the gate in San Ysidro. He came from a nearby shelter where he’d spent two months, hoping each time he left that border guards would let him through. A family of five from Michoacan and a single mother escaping domestic violence were also at the port of entry. None were allowed into the U.S. to request asylum, which would put them on a procedural path to state their case before an immigration judge.
Title 42’s unequal application was present in the five months before Russia invaded Ukraine, when people from both countries were flying into Mexico as tourists and entering the U.S. at high rates. This includes almost 7,200 people from Russia, driven by President Vladimir Putin’s intensifying crackdown on political dissidents and independent media.
Now it appears Russians are mostly being denied entry under Title 42. San Francisco immigration attorney Alex Tovarian has been at the San Ysidro border helping Ukrainians navigate the trip from the Tijuana airport to the port of entry and into the United States. He told The Chronicle that Customs and Border Patrol did not allow any Russians to enter last weekend despite his efforts to plead their case.
In an emailed statement to The Chronicle, Department of Homeland Security spokesperson Eduardo Maia Silva said that “DHS continues to grant Title 42 exceptions to particularly vulnerable individuals of all nationalities for humanitarian reasons. All exceptions are made on a case-by-case basis.”
Bolter said any moves to ease the path for Russians into the country would only highlight disparities in how the U.S. government applies Title 42.
News that the Biden administration could lift Title 42 by late May was both significant and not entirely surprising, Bolter said Wednesday, as the president has been under intensifying pressure from congressional Democrats and immigration advocates to distance himself from the harsh immigration policies of his predecessor.
“Title 42 has gotten increasingly hard for the administration to justify, what with lowered COVID case counts, widely available preventative measures, and the administration’s changed approach to the pandemic,” Bolter said via email.
Bolter said the effects of eliminating the policy would be quickly felt, allowing the vast majority of asylum seekers to enter the U.S. and make their claims inside the nation’s borders.
Karen Musalo, a UC Hastings law professor and director of the school’s Center for Gender & Refugee Studies, credited grassroots activists for shifting stubborn political headwinds.
“Title 42 was a real moral failure,” she said. “The immigrant rights community mobilized to call for an end to it and did not let up the pressure.”
Chronicle freelance photographer Carlos Moreno contributed to this report.
Deepa Fernandes and Raheem Hosseini (he/him) are San Francisco Chronicle staff writers. Email: deepa.fernandes@sfchronicle.com, raheem.hosseini@sfchronicle.com; Twitter: @deepafern, @raheemfh
Deepa Fernandes covers immigration and immigrant communities for The San Francisco Chronicle. She comes to The Chronicle from an award-winning career in broadcast journalism, reporting from around the world for NPR, the BBC and the Australian Broadcasting Corporation. Fernandes was named Radio Reporter of the Year for 2017, 2018 and 2019 by the LA Press Club, and among the many awards she has won is an LA area Emmy while reporting with KCET in Los Angeles. She has a Masters in Journalism from Columbia University. Follow her on Twitter: @deepafern
Before joining The Chronicle to be its race and equity editor in February 2021, Raheem Hosseini served as editor of the Amador Ledger-Dispatch and spent more than eight years writing and editing stories for his hometown alternative weekly, the Sacramento News & Review, the last several as its news editor. Raheem has also reported stories for The Guardian, CalMatters and Capital Public Radio, among others, and his work’s been credited or cited by The Atlantic, The New York Times, Washington Post and ProPublica. He has a bachelor’s degree in contemporary literature from UC Berkeley.


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