Title 42: Anti-Humanitarian Pandemic-Era “Temporary Policy” on Path to Permanency

By: Erin Mo Ferber

In many ways, the United States has tried to “move-on” from the Coronavirus pandemic. Mask mandates are lifted, people are going back to working in offices, travel has increased both nationally and internationally. Meanwhile, the United States is still adhering to strict Trump-era asylum practices that prevent people seeking safety and refuge in the United States in the name of public health.

Since March 2020, the Federal Government has used Title 42 over 2 million times to turn away and expel asylum seekers without a hearing.[1] Title 42 is a Trump-era CDC order that bars entry and allows expulsion of any person seeking asylum in the United States if there is a “serious danger of the introduction of [a communicable] disease into the United States.” [2] This means people fleeing persecution in their home country are being turned away or expelled from the United States without the usual safeguards. This policy was initially set to expire in May 2022 but continues to remain in place pending litigation.[3]

Numerous immigrant rights organizations have challenged Title 42 expulsions under the Trump and Biden administration for the unnecessary and extreme burdens it places on asylum seekers.[4] Dr. Anthony Fauci, the nation’s leading infectious disease expert, said migrants are “absolutely not” driving COVID-19 surges.[5] Title 42 seems like a convenient excuse to burden asylum seekers with pandemic-related issues that are wholly unrelated to immigration.

A federal district trial court found Title 42 violates the Administrative Procedures Act because it did not account for the “grave harm Title 42 imposes on asylum seekers and continuing long after there is any public health justification for it.” [6] Judge Emmett Sullivan, of the U.S. District Court in Washington, D.C. ordered the Biden administration to immediately lift Title 42, but then agreed to give the federal government until December 21, 2022, to lift the order. [7]

In response, a group of GOP-led states filed an emergency application to keep Title 42 in place.[8] In December 2022, the Supreme Court ordered a stay on lifting Title 42 until it receives a full briefing and arguments. Title 42 oral arguments are scheduled for March 1, 2023.[9] The final decision is expected by late June 2023.[10]

While Title 42 remains gridlocked in the political and judicial system, the United States government is effectively ignoring its legal and moral obligation to protect asylum seekers. According to the Universal Declaration of Human Rights, “Everyone has the right to seek and to enjoy in other countries asylum from persecution.”[11]

Title 42 renders legitimate asylum-seekers ineligible from protection, and disproportionally affects Black, Brown, and Indigenous migrants.[12] 292 civil, human, and immigrant rights groups wrote a letter to President Biden addressing these concerns.[13] They highlighted the asylum transit ban led the United States to deny asylum to:

“a Cuban political activist persecuted for supporting an opposition movement
a Venezuelan journalist and her child,
a student activist shot during a protest against the Nicaraguan government, and
LGBTQ asylum seekers who had fled various countries where they are at risk of harm.”[14]

These individuals have a right to present their asylum case. As we continue crossing borders for travel and leisure, we should accept those crossing borders for security and protection from persecution.

Erin Mo Ferber (she/her) believes we have a responsibility to practice law in a way that promotes social equity and justice for all, especially for underrepresented and underserved communities. Erin is a 2L at Arizona State University’s Sandra Day O’Connor College of Law. Her legal interests include immigration law, criminal justice, body autonomy, and issues affecting low-income communities. Her personal interests include plant-based meals, stand-up comedy, and memoirs read by the author.

[1] https://www.aclu.org/press-releases/supreme-court-keeps-title-42-policy-place-now

[2] https://www.aila.org/advo-media/aila-practice-pointers-and-alerts/practice-pointer-title-42-and-asylum-processing

[3] https://www.aila.org/advo-media/aila-practice-pointers-and-alerts/practice-pointer-title-42-and-asylum-processing AND https://www.politico.com/news/2022/12/27/supreme-court-blocks-lifting-of-title-42-border-policy-00075650

[4] https://www.aclu.org/press-releases/supreme-court-keeps-title-42-policy-place-now

[5] https://www.forbes.com/sites/alisondurkee/2021/10/03/fauci-says-immigrants-are-absolutely-not-driving-covid-19-surge-lets-face-reality-here/?sh=4076d8d7173d

[6] https://www.aclu.org/press-releases/supreme-court-keeps-title-42-policy-place-now

[7] https://www.texastribune.org/2022/12/16/title-42-migrants-court-ruling/

[8] https://www.politico.com/news/2022/12/27/supreme-court-blocks-lifting-of-title-42-border-policy-00075650

[9] https://www.washingtonexaminer.com/news/justice/supreme-court-pushes-back-title-42-arguments

[10] https://www.politico.com/news/2022/12/27/supreme-court-blocks-lifting-of-title-42-border-policy-00075650

[11] https://www.unhcr.org/en-us/publications/refugeemag/3b80e2a74/refugees-magazine-issue-111-universal-declaration-human-rights-50th-anniversary.html#:~:text=The%201951%20Convention%20on%20the,turned%20the%20ideals%20of%20the

[12] https://humanrightsfirst.org/wp-content/uploads/2023/01/Letter-to-President-Biden-re_-asylum-ban-NPRM-1.pdf