Washington, DC – The Biden administration has announced that the United States will end its use of Title 42, the contentious policy that prevented most asylum seekers from applying for protection at the country’s southern border with Mexico.
In a statement on Friday, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas said Title 42 will be rescinded by May 23, but that expulsions of adults and families will continue until then. Unaccompanied children have been exempt since January of last year.
“Title 42 is not an immigration authority, but rather a public health authority used by the Centers for Disease Control and Prevention (CDC) to protect against the spread of communicable disease,” Mayorkas said.
The US public health agency first invoked Title 42 in March 2020 as COVID-19 swept through the country, saying it was necessary to prevent the spread of the virus. On Friday, it said the measure was no longer needed.
“After considering current public health conditions and an increased availability of tools to fight COVID-19 (such as highly effective vaccines and therapeutics), the CDC Director has determined that an Order suspending the right to introduce migrants into the United States is no longer necessary,” the CDC said in a statement.
There is absolutely no evidence that this is true, and Title 42 itself has been a major driver of increased border crossings.
Take a look at this chart of Border Patrol apprehensions. Title 42 *causes* more crossings, because it incentivizes people to try over and over again. https://t.co/ary7o6RSs2 pic.twitter.com/EeBJleNeHm
— Aaron Reichlin-Melnick (@ReichlinMelnick) April 1, 2022
The formal announcement comes after news agencies and local news outlets reported on Wednesday that the administration of US President Joe Biden was planning to end the policy in May.
Since Title 42 was put in place, more than 1.7 million expulsions were carried out, with the vast majority of asylum seekers quickly expelled back to Mexico or their countries of origin without the chance of applying for asylum in the US.
The rule garnered widespread criticism from rights groups, the United Nations, immigrant advocates and progressive Democratic leaders who said it violated both US and international laws.
Immigrant advocates also said the measure created confusion at the border, contributed to higher border apprehensions, and put asylum seekers in harm’s way.
The US-based group Human Rights First has documented nearly 10,000 reports of kidnapping, torture, rape, and other violent attacks against people sent to Mexico under Title 42 from the start of last year through mid-March.
Biden, who took office in January 2021, kept the measure in place despite promises to overturn the anti-immigration legacy of his predecessor Donald Trump. But the policy became more difficult to defend in recent weeks amid plunging COVID-19 infection rates in the US and the reversal of most pandemic restrictions.
On Friday, while welcoming the end to Title 42, rights groups slammed the fact that expulsions would continue through May.
“We welcome this development, but a substantial rollback of expulsions can and should begin immediately so that more lives are not shattered in the interim,” Lee Gelernt, the lead litigator in an American Civil Liberties Union (ACLU) legal challenge to Title 42, said in a statement.
“Using the public health laws as a substitute for immigration policy was never justified and the courts have rightly said so,” he said.
That was echoed by Amy Fischer, Americas advocacy director at Amnesty International USA, who said in a statement that while the announcement was an important step, “the delay in implementation means that people will continue to be expelled” until May 23.
She said the end to Title 42 was nevertheless “a victory for asylum-seekers and their allies, particularly the Black, Brown, and Indigenous people who have been most affected by Title 42 expulsions and have been lifting their voices in unison to protest the policy”.
Ending the border restriction raises the possibility that large numbers of people may stream towards the border. Thousands of asylum seekers from Central America, Haiti and other countries are living in shelters and migrant camps in Mexico waiting for the US to reopen its borders.
Friday’s announcement came at a time when border arrivals are already high. On Tuesday, DHS said that about 7,100 asylum seekers were arriving daily – much higher than the daily average of about 5,900 people per day in February.
“We know that with the end of Title 42 there will be mischaracterizations about what will happen next and what it means for America’s borders,” Sergio Gonzales, executive director of the US-based Immigration Hub said in a statement. “But the bottom line is that the Biden administration is ready and it has a plan.”
On Wednesday, DHS published a fact sheet detailing its preparations for a potential increase in asylum seekers arriving at the border, which included deploying more personnel and expediting asylum claims.
A central part of the new asylum procedures is called the “dedicated docket”, where determinations on cases will be made within 90 days at the border – rather than in immigration courts, where the process can take years.
The administration said this process would bypass the significant backlog of immigration cases across the country.
But on Friday, a group of Democratic senators including Edward Markey, Elizabeth Warren and Cory Booker sent a letter to DHS urging the department to end the plan, arguing its focus on speed undermines fairness and accuracy in asylum cases.
“We are highly concerned that the dedicated docket is having the unintended consequence of prioritizing expediency over due process and fairness,” their letter reads. “Citizens, residents, and noncitizens alike should have access to full and fair hearings when they are entitled to them.”
