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The Absurdity and Destruction of the Push to Force Title 42 Continuation – Just Security

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July 1, 2022
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July 1, 2022
The Supreme Court yesterday ruled that the Biden administration can end the notorious Remain in Mexico policy. Now, the administration should urgently take steps to ensure that fiasco is finally brought to an end.  But ending the Remain in Mexico policy is not enough to restore order and compliance with U.S. immigration and refugee law at the border. The so-called Title 42 policy, which also turns people seeking refuge back to deadly dangers, must also end.
Dubbed a “Stephen Miller special” by one former Trump administration official, the Title 42 policy has since March 2020 allowed the use – or misuse, as public health experts have repeatedly concluded – of public health authority to block and expel people at the U.S. southwest border without due process, adherence to refugee law and treaties, or immigration law consequences. In a lawsuit initiated by state attorneys general aligned with the Trump administration, a federal district court in Louisiana issued a preliminary injunction last month forcing continuation of the policy, which the Centers for Disease Control (CDC) had ordered to end by May 23, 2022.
On the Hill, some members of Congress are working to force continuation of this policy legislatively. For example, on Friday, June 24, the House Appropriations Committee adopted an amendment to the Department of Homeland Security (DHS) funding bill for Fiscal Year (FY) 2023  that, if ultimately enacted, would seek to extend the specious policy and its use as an asylum ban indefinitely.
A recent Just Security article outlined ways in which the policy is a humanitarian and human rights disaster, as well as the various Title 42 litigations in the courts. One of the great absurdities of the concerted push to maintain the policy is that it should please no one – including those who continue to advocate for it in the name of rule of law or “border control,” both of which Title 42 undermines.
Proponents of the forced continuation of the Title 42 “public health” policy have absurdly and inaccurately painted it as a tool needed for “controlling the influx of migrants at our southern border” and claim it needs to stay in place to “secure” the border. Far from being an effective border management tool, the Title 42 policy is a failed attempt at a border policy. The policy actually prevents U.S. agencies from enforcing immigration law, spurs increased crossings between ports of entry, inflates border apprehension statistics, exacerbates cartel violence and insecurity at the border, facilitates discriminatory asylum policies that target Black, Brown and Indigenous asylum seekers, and subverts both U.S. and international law. This is all in addition to the grave human rights abuses suffered by those expelled to Mexico, Haiti, and other countries under the policy – abuses which Human Rights First (where I work) has closely tracked since the policy’s inception. Efforts to force continuation of the Title 42 policy, whether in the courts or on the Hill, will cause even more disorder and damage – which perhaps is the goal. It is past time to end the travesty and restore adherence to U.S. law and treaties.
Title 42 Is Bad Border and National Security Policy
The use of Title 42 has spurred repeat crossings at the border, inflated border statistics, benefited cartels, and caused disorder at the border. Title 8, unlike Title 42, produces legal consequences, such as removal proceedings, removal orders, formal deportations, and prohibitions on re-entry. In testimony before the Senate Homeland Security and Governmental Affairs Committee in May 2022, Acting DHS Assistant Secretary for Border and Immigration Policy Blas Nuñez-Neto told lawmakers that Title 42 does not impose legal consequences, led to repeat attempts to cross the border, and “has actually inflated our numbers at the border.” In written testimony, he stated that:
[Title 42] has led to extraordinarily high recidivism rates, as individuals expelled to Mexico attempt to re-enter shortly after their expulsions. For example, since April 2020, 94 percent of single adults encountered from Mexico and the Northern Triangle have been expelled under Title 42 authority, and during that time, these two groups have had had repeat encounter rates of 52 percent and 51 percent, up from 25 percent and 15 percent, respectively, between October 2013 and February 2020.
He also told lawmakers that, by using Title 8 immigration law instead of Title 42, “you are going to see a decrease” in numbers at the border. Earlier this year, U.S. Customs and Border Protection (CBP) had concluded that the number of border encounters “was partly driven by high recidivism rates (repeat encounters) among individuals processed under the CDC’s Title 42 public health authorities.”
Other authorities and experts have also raised alarms about the disorder caused by Title 42. In a June 2021 report, the Government Accountability Office (GAO) found that Title 42 expulsions led to “some individuals trying to cross the border multiple times per day” and that the repeat crossing rate rose to 34 percent during the first quarter of FY 2021, meaning that one in three people encountered at the border at that time had been previously expelled or deported. An American Immigration Council (AIC) analysis found that Title 42 significantly increased overall border crossings, that one in three apprehensions had been repeat border crossings since Title 42 began, and that the increase in apprehensions has been seen mostly among single adult migrants.
With respect to people seeking refugee protection, Title 42 has been used to ban and block them from seeking asylum at official ports of entry; it has also pushed asylum seekers – including Cubans, Haitians and Venezuelans – who previously mostly approached official border posts to seek asylum, to instead attempt to cross into the United States between ports of entry. For instance, as Human Rights First recently explained in a June 2022 report, government data confirms that in FY 2017, 99 percent of Cubans and Haitians encountered at the southern border had arrived through a port of entry. But after years of “metering” restrictions and Title 42 expulsions, in FY 2022 to date, just 0.2 percent of Cubans and 14 percent of Haitians arriving at the southern border were able to present themselves at a port of entry. The percentage of Haitians arriving through ports of entry rose in April and May 2022, as some ports of entry processed limited numbers of Haitian asylum seekers through Title 42 exceptions. More limited data also shows that the percentage of Venezuelan asylum seekers presenting themselves at ports of entry has followed a similar trend, plummeting from 56 percent in FY 2020 to just 0.2 percent in FY 2022 to date.
In fact, the Title 42 policy created a vicious cycle of disorder as CBP deployed staff away from processing at ports of entry to respond to increased crossings between ports and in vehicle lanes, even though the failure to process asylum seekers at ports of entry is a major factor driving many to cross away from the ports. Title 42 and similar policies that evade U.S. asylum law have also driven family separations and contributed to the arrival of unaccompanied children, as some parents fear leaving their children waiting even longer in danger in Mexico. In FY 2021, more than 12,000 children reentered the United States as unaccompanied minors after having been expelled under Title 42, usually with their parents, according to data obtained by CBS News.
Counterproductive policies such as Title 42 have benefited the criminal cartels that control extensive territories in Mexico and present a threat to both U.S. security and the lives of people turned away to these areas. As Human Right First detailed in a February 2022 report, cartels have adapted to turnback policies by targeting the very asylum seekers turned away by CBP – kidnapping them, purporting to charge them for the right to remain in Mexico, torturing them and demanding ransom payments from their U.S family members. Some of these organizations are working to actively prevent asylum seekers from approaching ports of entry, as the restoration of port of entry processing for asylum seekers threatens the cartels’ control and extortion efforts. The June 2021 GAO report indicated that Border Patrol officials had concluded that rapid “expulsions under Title 42 have negatively affected enforcement by reducing opportunities to gather intelligence.”
Title 42 Is a Human Security Disaster 
The victims of the Title 42 policy have suffered predictable and grave human rights abuses. Human Rights First and other groups have tracked at least 10,300 reports of murder, kidnapping, rape, torture, and other violent attacks against people blocked in or expelled to Mexico due to Title 42 since January 2021. Recent reports include attacks on a lesbian asylum seeker from El Salvador raped after being expelled to Mexico under Title 42, a transgender man from Honduras and his girlfriend blocked from requesting asylum due to Title 42 who were raped by men who said they were “going to teach them how to be women,” and a Nicaraguan woman kidnapped with her four-year-old child and raped, who remain stranded in danger in Mexico. Jocelyn Anselme, a 34-year-old Haitian asylum seeker, was murdered during an attempted assault and robbery in Tijuana in May 2022 while blocked from seeking asylum due to Title 42.
Expulsions overwhelmingly target people seeking asylum who are Black, Brown and Indigenous, in sharp contrast to the administration’s commitment to racial equity. The Biden administration has accelerated expulsions to Haiti despite the escalating armed violence, which the U.N. High Commissioner for Human Rights observed in May 2022 “has reached unimaginable and intolerable levels in Haiti.” About 4,000 Haitians were expelled or deported on at least 36 flights in the month of May 2022 alone—the second highest number of flights to Haiti during the Biden administration. DHS has disproportionally targeted Haitians for expulsion flights. As the New York Times noted in May 2022, “Haitians represented about 6% of the migrants crossing the border with Mexico but occupied 60% of expulsion flights.”
The attorneys, faith volunteers, and humanitarian workers who assist asylum seekers and migrants have also been targeted by cartels as their assistance to the people left stranded in danger due to these policies is viewed as a threat by the cartels.
In the wake of Title 42 and similar policies, border crossings have become increasingly deadly, with the International Organization for Migration (IOM) reporting that at least 650 people died attempting to cross the southern U.S. border in 2021—the deadliest year since IOM began to tally migrant deaths in 2014. The horrific and tragic deaths of 53 men, women and children found in a tractor-trailer in San Antonio on June 27, 2022, are the heart-breaking consequence of policies that deny access to asylum and other legal migration routes.
Title 42 Subverts the Rule of Law
For years now, the ability of people seeking asylum to do so at the U.S. southwest border has not been determined by the relevant U.S. refugee and immigration law, due to the imposition of Title 42 and similar policies. Instead, the ability to seek asylum has been determined by a host of other, often discriminatory, factors such as nationality, family status, location of crossing or arrival at the border, the age of children, the decisions of individual border officers, and/or the migration return policies of other countries such as Mexico, Guatemala, Haiti, Cuba, Nicaragua, or Venezuela.
So, for instance, whether or not Cubans, Nicaraguans, and Venezuelans are subjected to Title 42, turned away to Mexico, or allowed to seek asylum depends on the policies of the Mexican government and/or whether or not their repressive regimes agree to accept back migrants. And Haitians are put on flights to Haiti and denied access to asylum in violation of international law because their politically unstable government agrees to accept their return. In other cases, the policy of the Mexican state of Tamaulipas and the age of a family’s child determined whether some families were allowed to seek U.S. asylum or were turned away under Title 42 – as the state of Tamaulipas refused to accept expelled children under the age of seven.
Using the Title 42 policy to return people to places where they face persecution and torture violates not only U.S. refugee law but also international law and treaty obligations – as former and current U.S. government officials, federal courts, the U.N. High Commissioner for Refugees, the Inter-American Commission on Human Rights, the Special Rapporteur on the Human Rights of Migrants, and the DHS Office for Civil Rights and Civil Liberties have warned. The U.N. High Commissioner for Refugees has, for example, repeatedly called on the United States to end the Title 42 policy and to “restore access to asylum for the people whose lives depend on it, in line with international legal and human rights obligations.”
The State Department’s former top legal advisor Harold Koh concluded the policy was both “illegal and inhumane” before he resigned. He subsequently reiterated his conclusion that the Title 42 policy is illegal in an April 2022 interview. As explained in a recent Just Security article, in March 2022, in response to litigation brought on behalf of families, the U.S. Court of Appeals for the D.C. Circuit held that the Title 42 policy is likely illegal and that the U.S. government “cannot expel [asylum seekers] to places where they will be persecuted or tortured.”
The lack of adherence to actual refugee law and legal standards at the border allows and facilitates discriminatory double standards, such as the disparate expulsion of Haitians referenced above and the provision of Title 42 exemptions to (white) Ukrainians at the U.S. southwest border while DHS continued to deny access to Haitian and other Black asylum seekers, as well as Central Americans. An adult who crosses the border to seek asylum from El Salvador, Guatemala, or Honduras will likely be expelled under Title 42, while those from Cuba, Nicaragua or Venezuela will generally be allowed to seek asylum. These disparities are not determined by U.S. refugee law and treaties and run contrary to the Refugee Convention’s non- discrimination provision.
The failure of the United States to respect its refugee law and treaty obligations sets a counterproductive example for the rest of the world, including the low and middle-income countries that actually host the vast majority of the world’s refugees, and undermines the ability of the United States to encourage other countries to continue to welcome and host those refugees. The Title 42 policy threatens to subvert respect for international refugee law as well as international law more broadly, as Professor Oona Hathaway warned in Just Security shortly after the Title 42 policy was initiated. The policy, and the poor example it sets for other countries, also undermines efforts to combat authoritarianism. Indeed, in light of the risks facing victims of repression when they attempt to seek refuge, Freedom House has called on states to respect the right to seek asylum and uphold the Refugee Convention, stressing that states “should not create policies with the aim of preventing asylum seekers from accessing their territory.”
To Support Orderly Border Processes, Oppose Forced Prolonging of Title 42
Despite all this damage, some members of Congress have been attempting to force the indefinite continuation of this failed policy through legislation. Senator James Lankford (R-OK) and Kyrsten Sinema (D-AZ) introduced the Public Health and Border Security Act of 2022, and Representative Tony Gonzales (R-TX) introduced a similar bill by the same name in the House. These bills seek to wrest the authority to make public health determinations from the CDC, keeping the Title 42 order in place until after the public health emergency connected to COVID-19 is terminated. On June 26, Representative Dan Newhouse (R-WA) successfully introduced an amendment, in the House Committee on Appropriations, to the FY 2023 DHS funding bill to try to block funding for salaries or expenses to process migrants under Title 8 immigration law until 180 days after the public health emergency is officially terminated – a disturbing attempt to prevent U.S. officers from upholding U.S. immigration and refugee law indefinitely.
The Congressional push to maintain Title 42 and use it to ban asylum has been accompanied by now standard, orchestrated, border “invasion” fearmongering. Newhouse claimed his amendment to force continuation of Title 42 was needed to manage the “border crisis” and a “flood” of migrants. Some congressional offices may be deceived or confused about the actual, counterproductive impact of Title 42, or may be trying to appease accusations that they are not “tough” on the border (even though no amount of cruelty will ever appease the long planned, unappeasable border fearmongering). Perversely however, as outlined above, the forced continuation of Title 42 serves to prevent border officers from upholding immigration law, and leads to more disorder, human suffering, and the subversion of law.
The Biden administration is far from blameless in this fiasco. While the administration is contesting the recent district court preliminary injunction in the suit brought by state attorneys general, multiple media reports indicate that several senior Biden administration officials made the decisions to continue the Title 42 policy during 2021. These legal, moral, and political miscalculations served to exacerbate the disorder at the border, delay the restoration of asylum at ports of entry, and provide the perpetrators of divisive invasion rhetoric with a steady diet of inflated border numbers for their fearmongering.
It is past time for a major course correction. The administration must do all it can to bring this failed policy, as well as the unfixable Remain in Mexico policy that the Supreme Court ruled on yesterday, to an end and mitigate the harm inflicted – to human lives and the rule of law – in the meantime. The courts and members of Congress should halt all attempts to prolong this travesty. In addition, the House of Representatives and the Senate must remove the dangerous and counterproductive Newhouse amendment, which violates U.S. refugee and immigration laws, from the DHS appropriations bill before sending the final bill to President Biden.
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Just Security is based at the Reiss Center on Law and Security at New York University School of Law.

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