Title 42 Led to 1.5 Million Deportations. Biden Should’ve Repealed It Earlier.

This is what the Biden administration finally announced. come May 23, it will no longer be summarily deporting asylum seekers back across the border into Mexico as part of the U.S.’s response to COVID-19.

This is a momentous reversal of one of the Trump era’s most destructive anti-immigrant policies, coming on the heels of the Biden administration’s announcement nearly three weeks earlier that it was ending the summary-deportation policy for unaccompanied children. It was a decision that should have been made 15 months ago.

Since more than two decades, asylum seekers who attempted to cross the U.S.–Mexico border were summarily deported pursuant to a public health rule known “Asylum Seekers” Title 42The Centers for Disease Control and Prevention (CDC), invoked this law in response to the pandemic. This allowed the bypassing of traditional court procedures and de facto the closing down of the land frontier for those who wanted to claim asylum after crossing into U.S.

It was, for Donald Trump’s anti-immigration henchman Stephen Miller, the culmination of years of lobbying to use Title 42 as a catch-all regulation that would allow the administration to essentially shut down the southern border and deny sanctuary to pretty much anybody claiming asylum in the country. After putting the activation of Title 42 on a “wish list” of anti-immigration policies in 2017 shortly after Trump was inaugurated, Miller had, in the intervening years, repeatedly attempted to get the CDC to invoke the rule in response to mumps and flu outbreaks. The CDC reacted negatively to this, knowing that it was politically motivated and not driven based on sound public health principles.

Miller saw the opportunity to take advantage of COVID. Miller lobbied tirelessly for the CDC’s lockdown of the border. Then, when the agency’s top scientists continued to resist, realizing that doing so would have no meaningful impact on the course of the pandemic given the prevalence of community spread within the U.S. itself, Vice President Mike Pence, who had been put in charge of the administration’s pandemic response, ordered its director to invoke Title 42This has resulted in the deaths of many vulnerable migrants. Robert Redfield, then Director of the CDC, complied with the order and ordered that his staff implement it.

The rule was a byword for cruelty in the last 10 months of the Trump administration — on a par with the Muslim travel ban; the public charge rule that made it all but impossible for immigrants hoping to gain permanent residency to access any public services; Trump’s determination to build a border wall; and the obsessive efforts to end the Deferred Action for Childhood Arrivals program. Immigrants’ rights advocates hoped that, in the first days of the Biden presidency, the new administration would stop using Title 42 in this way.

Instead, faced with a massive increase in the numbers crossing the southern border every day, and a groundswell of political dissatisfaction regarding its handling of the border “crisis,” the Biden administration found it politically expedient to keep the rule in place. In another abominable example of politics overthrowing science at the agency in August last year, CDC Director was removed. Rachel WalenskyShe signed the extension of the order with her signature.

In the two years that have passed since the first trigger, there has been an estimated of 1.5 million deportationsThese have been carried out under its mandate. (Because border crossers often get deported multiple times in one year, the likely number of individuals deported under Title 42 are far lower than this.

The results were morally disastrous. Last month, Human Rights FirstA report was released that detailed how more than 10,000 would be migrants who were expelled to Mexico under Title 42 in March 2020 had been raped, tortured and subject to other violent forms.

In September 2021 many of the country’s top epidemiologists signed a letter to the administration decrying the “scientifically baseless and politically motivated” expulsion policy. The same month, a slew of leading public health experts wrote a similar letterWalensky as well as Department of Health and Human Services Secretary Xavier Beccerra and Homeland Security Secretary Alejandro Mayorkas. The letter noted that many of the countries that had implemented restrictions on entry to control COVID outbreaks also had exceptions that allowed asylum seekers to enter. The U.S. was in this regard a harsh outlier.

Biden’s administration, who has stated from the beginning that it is science-driven in its response to the pandemic, shut down the criticisms from top scientists and instead increased its support for this Trump-era antiimmigration tool. The administration’s fear was that ending the policy would result in a dash to the border by desperate migrants who finally saw an opportunity to get a toehold in the United States. As it turned out, with polling showing that a growing number of Americans were angry at Biden and the Democrats for their priorities around immigration, and specifically for presiding over a huge increase in the numbers of people trying to cross into the U.S. from Mexico each day, Biden’s team decided to double down in support of Title 42.

The decision to continue Title 42 implementation was political expedient, but morally questionable. It has attracted a lot of attention over the last few months. increasing criticism from progressives within Congress and among the grassroots, as well as from some officials within the State Department — one of whom, Harold Koh, sent in a scathing resignation letter in October in which he decried the ongoing “illegal” and “inhumane” use of Title 42.

Now, the spring of 2022 is filled with thousands upon thousands of desperate would­be-asylees (including an array of a growing number of UkrainiansAfter being stopped daily by border officials when they tried to enter the U.S. from Mexico, the Biden administration announced that it was changing its mind. It’s a long-overdue shift back to a more decent treatment of asylum seekers. It’s a shame that it took the Biden administration 15 months and the war in Ukraine to find its moral compass on this issue.