Since the beginning of the coronavirus pandemic, the United States has expelled at least 850,000 migrants under an order authorizing their expedited removal in the name of public health.
In the coming weeks, President Joe Biden and the Centers for Disease Control and Prevention are expected to slowly unwind that authority, called Title 42, albeit only for some groups and over an as-yet-undetermined timeline. But in a continuance of the longstanding difficulties that immigration issues have posed for the White House, that decision that comes too late and too slowly for immigration advocates—and too hastily for Republicans, who see troubles at the border as central to their efforts to retake Congress next year.
“It’s like the rat king of policy shitshows,” an Obama-era immigration official told The Daily Beast, likening the competing public health and political interests to nightmarish German folklore artifacts composed of a dozen rats with inter-knotted tails from which the only escape was self-amputation. “Changing the policy in any direction poses obvious risks to a) the legitimacy of your promises to implement humane immigration policies or b) your ability to effectively counter bad-faith ‘crisis at the border’ narratives—which might explain why it’s taken this long to change it.”
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The dynamic highlights the continued difficulty that border issues have posed over the first six months of the Biden administration, which promised an about-face from the anti-immigrant rhetoric and policies of President Donald Trump but has often quietly continued enforcing Trump-era policies on detention, expulsion and admission of asylum-seekers. Those policies, frustrated advocates say, have exacerbated a humanitarian crisis on the U.S.-Mexico border that will only get worse without a wholesale change in policy.
“My aunt and my cousin, at this moment, are sleeping in a park because they have nowhere to go after being rejected and expelled at the border,” said Jacqueline Flores, a member of the Asylum Seeker Advocacy Project who has multiple family members being held on the southern side of the border due to Title 42, and who herself is an asylum-seeker. “It’s painful to know that my family and other asylum-seekers are confronting the same dangers that I suffered through because they are being expelled and not permitted to seek asylum at the border.”
Title 42 was initially implemented in March 2020 in the name of public health, when the coronavirus was feared to be raging in congregate settings like immigration detention facilities where many of those held are in high-risk categories. But the policy became nearly inextricable from the virulently anti-immigrant politics of the Trump administration, which cited the pandemic as an excuse to further longstanding goals to deter immigration like blocking access to green cards and fast-tracking deportations for unaccompanied children.
Despite the inarguably political nature of the current policy’s origins—Trump announced that he would be signing an executive order suspending immigration into the United States “in light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens”—the White House has steadfastly denied that Title 42 is being used as a tool to deter immigration.
“We are very clear-eyed that this is a public health measure and not a tool of immigration enforcement,” a White House official told The Daily Beast, adding that “fair and orderly immigration continues to be our goal.”
The official told The Daily Beast that the recent record number of encounters with undocumented migrants by border officials—188,829 last month, according to U.S. Customs and Border Protection data released on Friday—will have no effect on the timeline for rescinding Title 42. In fact, the official said, that number is artificially high in part because the swift turnaround for migrants under Title 42 increases recidivism rates for illegal crossings.
“Because it’s a rapid expulsion, it gives people the opportunity to re-enter more quickly,” the official said.
Under Biden, the United States has allowed unaccompanied children to enter the United States under humanitarian grounds despite the Title 42 restrictions. But that has left tens of thousands of others, including families with children, on the other side of the U.S.-Mexico border in increasingly dire circumstances. According to data collected by Human Rights First, an international human rights organization, more than 3,200 migrants have been victims of violent crimes, including kidnapping, rape, human trafficking and assault, after being expelled or blocked under Title 42 since Biden was inaugurated.
The political crisis in Haiti threatens to further spread the risk of harm. Following the assassination of President Jovenel Moïse earlier this month, thousands of Haitians fleeing potential violence have come to the Mexican border in hopes of safety, according to Denise Bell, a researcher for refugee and migrant rights at Amnesty International.
“Thousands more are stranded by the U.S. government and left in treacherous conditions in Mexican border towns as they attempt to seek safety here, a feat almost insurmountable due to the misuse of the public health quarantine Title 42,” Bell said. “The U.S. must immediately put TPS into action, lift Title 42, and stop deportations.”
But according to Republicans, the built-up pressure of hundreds of thousands of migrants waiting for the green light to seek asylum threatens to overwhelm the immigration system if the administration issues a wholesale suspension of Title 42.
Twenty-six Republican senators signed a four-page letter last week warning Biden that the revocation of Title 42 would “further exacerbate the crisis at the southwestern border,” requesting that the order remain in place until “the threat of COVID-19 variants is significantly reduced” and until the implementation of policies “to bring the situation along the southwest land border under control.”
“Can you imagine what would happen and what will happen when Title 42 goes away?” said Sen. Shelley Moore Capito (R-WV) at a press conference announcing the letter. “They have no plan for this flood of humanity.”
While the Biden administration has privately hinted that a rescission of Title 42 may be on the way, current plans are for the order to be revoked in stages: first allowing families with children, followed later by groups at particular risk, and finally by single adults. But the timeline for that plan remains a mystery, with the White House deferring to the Centers for Disease Control and Prevention on any public health decisions and the Centers for Disease Control and Prevention, in turn, referring requests for comment to the White House.
But immigration advocates questioned the logic of a staged drawdown of Title 42, noting that there’s little evidence from a public health standpoint that a mother and child pose a different health risk to the American public than a woman and a child entering separately.
“As we work to recover from the racist policies made under the previous administration, we cannot return to a broken system [and] a piecemeal approach to decision making that will continue to inflict harm,” Rep. Judy Chu (D-CA) told reporters on a press call. “Title 42 effectively functions as a family separation policy.”
