How the Biden Administration Can Begin To Erase the Shameful Legacy of Trump-Era Immigration Ban

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April 9, 2022: A child sleeps in a tent, where he lives with his family and other refugee migrants from Central and South American countries seeking asylum in the United States. (Patrick T. Fallon / AFP via Getty Images)

The Centers for Disease Control and Prevention (CDC) lifted the Trump administration public health order that suspended the entry of certain individuals, including many asylum seekers, into the United States, effective May 23, 2022.

The CDC’s initial order, according to Title 42 of the U.S. Code designed to address quarantine procedures (not immigration processing), has proven disastrous for migrants at the U.S. southern border, as Ms. has documented. The government invoked Title 42 over 1.7  million times to expel individuals without the benefit of any due process, including honoring their right to seek asylum. Human rights organizations have documented almost 10,000 incidents of murder, rape, kidnapping, sexual exploitation and other violence against those expelled. 

The delayed implementation of the CDC order is designed to give DHS time to prepare for an anticipated surge of unauthorized migration. Recognizing that the majority of those expelled have tried repeatedly to enter the U.S, DHS announced that it has been planning for a surge that could range from 12,000 to 18,000 encounters a day at its height.

Those numbers are alarming, but not surprising given the suppression of migration caused by both Title 42 and the pandemic. Such increases reflect a trend in mass migration that began during the Obama administration, and continued during the Trump administration, but was hidden from view during the pandemic. People are on the move, fleeing persecution, violence, poverty, climate change and political corruption and instability. They are leaving not only Mexico and Central America, but an increasingly wider range of countries. With the recent refugee crises in Afghanistan and Ukraine, we can only expect even more migrants to find their way to the southern border.

People are on the move, fleeing persecution, violence, poverty, climate change and political corruption and instability. With the recent refugee crises in Afghanistan and Ukraine, we can only expect even more migrants to find their way to the southern border.

Title 42 allowed the country to bury its head in the sand, but it was always evident that lifting the order would result in a dramatic increase of unauthorized migration. The Biden administration correctly exempted unaccompanied children (who were protected by law from Title 42, something ignored by the Trump administration) in January 2021.  But the administration was brand-new and had not yet developed an adequate response to the inevitable rise in unaccompanied children’s cases. This resulted in months of overcrowded and chaotic conditions before DHS opened a series of emergency intake sites (EIS) that could be used as way stations until children could be moved into more appropriate care. At their height, the government operated a dozen EIS facilities which, although far from ideal, allowed it to better manage the flow of arriving children until more permanent measures could be taken.

DHS has had a chance to learn from this experience, and now can couple doing the right thing with preparing for the consequences of that decision. Immigration opponents want the aftermath of Title 42 to be about “Biden’s border crisis,” circulating talking points that picture the end of Title 42 as more evidence of a failed border strategy—completely ignoring the fact that Title 42 is not an immigration enforcement measure. Lawsuits and legislation designed to force the administration to keep Title 42 in place are already in play.

Particularly disturbing, however, is that there is bipartisan opposition, which focuses not on public health, but on the tired tropes of a border invasion. As several Republicans said during a House border hearing last week, Title 42 is an effective border control strategy—without it, we will descend into chaos.

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Experts have recommended steps the administration can take to begin to erase the legacy of Title 42, including re-opening ports of entry so that asylum seekers need not risk their lives making dangerous border crossings. (Eric White / Flickr)

Keeping a public health order that was legally suspect in force because it gave DHS free rein to expel is not a solution to border control.

At best, Title 42 was an overly broad reading of the CDC’s emergency authority to temporarily suspend entry of goods and persons into the U.S. during a pandemic or other public health emergency.

At worst, the order was a coldly calculated, politically motivated alternative to the Trump administration’s failed efforts to ban Muslims, revoke asylum, and limit all forms of immigration, policies which had been blocked by the courts. The Trump administration had already taken steps to close international borders and ports of entry (as had many other countries), but had also essentially frozen legal immigration without any public health basis for doing so. Title 42 went further, blocking unauthorized migration, particularly at the southern border, using the pandemic as a smokescreen for ending access to asylum for hundreds of thousands of desperate people.

Immigration opponents want the aftermath of Title 42 to be about “Biden’s border crisis,” circulating talking points that picture the end of Title 42 as more evidence of a failed border strategy—completely ignoring the fact that Title 42 is not an immigration enforcement measure

Since March 2020, public health experts, civil rights advocates and the immigration community have consistently denounced both the order and DHS’s interpretation of its authority to expel people as both unnecessary and illegal.  Most notably, public health experts have been united in their assessment that Title 42 never contributed to public safety. 

This is striking because even in the early days of the pandemic—when the fear about transmission was palpable and none of us knew whether we were safe—public health experts—even privately within the CDC—were saying you don’t have to deny due process to protect the country. Screening, quarantining, and limiting detention were all better and preferable mechanisms for protecting government officials, migrants, and the public.

Fast forward two years. COVID-19 remains a threat, but mandatory masking and other necessary restrictions have been cut back or eliminated in most jurisdictions. Vaccinations and booster shots are available. The government has improved its management of pandemic protocols in its facilities. The tools to protect everyone from COVID-19 are so much greater today that continuing Title 42 is not only unnecessary, but also undermining the CDC’s authority.

The question should not be whether Title 42 should have been lifted, but how do we ensure that the government has the resources and backbone it needs, to do the right thing.  It is a good sign that the Federal Emergency Management Agency (FEMA) will oversee the post-Title 42 contingency planning, because this is a signal that DHS will treat any surge as a humanitarian rather than a border security issue.

However, the Biden administration and DHS will miss an opportunity to rework its border management policies if the post-Title 42 response is simply treated as an emergency action. Instead, this is a chance to pilot and execute strategies for creating a 21st century border processing framework, one that prioritizes compassion and due process over fear.

In the short term, there are many steps the administration can take to begin to erase the legacy of Title 42. Re-opening ports of entry so that asylum seekers need not risk their lives making dangerous border crossings is a start. Working closely with border communities to identify and prioritize their interests is critical. Taking that partnership seriously can help manage community concerns and leverage the generosity of border communities towards migrants.

 Building immigrant reception centers that feel like recovery sites rather than prisons and streamlining procedures for releasing people into the community, can both improve individual experiences and reduce the appearance that the situation is out of control.

Paying attention to the needs of the most vulnerable will be critical. Now is the time to implement practices that will further protect unaccompanied children. For instance, hiring child welfare professionals to work on the ground at CBP sites (Congress has appropriated the funds for this but CBP has failed to follow through).   Co-locating ORR officials at CBP facilities could allow ORR to make initial child custody decisions more quickly, prevent family separations, and reduce the likelihood that children linger in inappropriate holding cells during surge events.

Implementing reforms and improvements is a taller order than it should be. Reports of political infighting over immigration policy have plagued the Biden administration. Biden’s attempts to do the right thing—such as end the Migration Protection Protocols or enact a deportation moratorium—have been blocked by litigation brought by immigration restrictionists and hostile state governments. The administration may have made the political situation worse by waiting so long to end Title 42, handing opponents an attractive anti-immigrant bullhorn in an election year.

Leaning into the consequences of fixing someone else’s illegal actions is not easy. The Trump administration deliberately undermined the already shaky asylum framework and, with Title 42, tabled a conversation on the changing migration patterns the U.S. is witnessing. People are in need, and they will continue to come to the U.S. Lifting Title 42 means that the public will see that raw need and human suffering more clearly than they have in two years—offering solutions, rather than rattling sabers, is the only sensible way to move forward.

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About

Mary Giovagnoli is the former executive director of Refugee Council USA.  She served as deputy assistant secretary for immigration policy in the Department of Homeland Security from January 2016 to January 2018.