• What is Title 42?

    January 29, 2023 // Comments Off on What is Title 42?

    Title 42 is a clause of a 1944 Public Health Services Law which allows the U.S. government to prevent the entry into the country of individuals during certain public health emergencies, in this case asylum seekers who are sent to wait out their years of processing in Mexico, not in the United States, during Covid.

    But to really understand Title 42 you have to understand what is happening at the southern border and what has happened with asylum claims. At play are potentially millions of aliens flooding into the United States. America’s asylum laws, meant to help the most vulnerable, have instead become a clogged backdoor for routine economic migrants. Title 42 was a very small step by the Trump administration toward restoring asylum to its correct role in American immigration policy. Biden seeks to go back to the “everybody in” system with all the consequences.

    Asylum recognizes a person persecuted by his own country can be offered residence and protection by another country. The actual conditions vary considerably across the globe (the U.S. considers female genital mutilation grounds for asylum while in many nations it is a desired practice). But in most cases, asylum is offered to people who face a well-founded fear of persecution if sent home on account of their race, religion, nationality, political opinion, or social group. The definition of those five protected grounds have also varied greatly based on shifts in American domestic politics. Since 1994, for example, LGBT status has been, and remained under Trump, a possible claim to asylum. Domestic violence was granted consideration as grounds under the Obama administration, only to be rolled back under Trump.

    But the reality of 2022 is the asylum system evolved into a cheater’s backdoor, a pseudo-legal path to immigration not otherwise available to economic migrants. They lack either the skills for working visas or the ties to qualify for legal immigration under America’s family reunification system. So they walk to the border and ask for asylum, taking advantage of previous administrations’ look-the-other-way “solution” to their ever-growing numbers. Affirmative asylum claims, made at ports of entry, jumped 35 percent pre-Covid.

    It worked — for them. A Honduran on the border who says he simply came for a job is sent back almost immediately. However, should he make a claim to asylum, the U.S. is obligated to adjudicate his case. Since detaining asylum seekers and their families while the processes play out is expensive and politically distasteful (kids in cages!) until recently most asylum seekers were instead released into American society to wait out their cases. They then became eligible for work authorization when their cases extended past 150 days. The number of pending cases pre-Covid was 325,277, more than 50 times higher than in 2010.

    Eventual asylum approval rates for all nationalities over the past decade average only 28 percent. Yet even after they’re denied, applicants can either refile as defensive asylum claims or disappear into the vast underground of illegals. Simply making a claim to asylum is often enough to live and work in America. Trump tried to change that with Title 42. Basically due to the possibility of flooding the country with Covid-positive asylum seekers, the threat of disease was invoked as a reason/excuse to keep the asylum seekers out of the U.S. while their cases drag on and on. Some asylum seekers and their families were detained at the border as a deterrent rather than released into society. But public outcry over caged families and the massive costs in housing and feeding sent the Trump people looking for another way to implement Title 42.

    The change was for the Trump administration to negotiate for asylum seekers to wait out their processing times not in American society or an American detention facility, but in Mexico, through a program called the Migrant Protection Protocols. People at the border make their asylum claims, and are then nudged a step backward to wait for an answer in Mexico. The Department of Homeland Security also established an agreement with Mexico to accept all Venezuelan nationals who cross the border seeking U.S. asylum.

    Title 42 stopped some 2.4 million would-be immigrants. The Biden administration now seeks to return to the old pre-Trump system, whereas asylum seekers would generally be set free inside the U.S. to go somewhere and wait out their processing. Nascent implementations of this system fell flat; U.S. Immigration and Customs Enforcement (ICE) estimates they already “lost” 150,000 migrants due to Biden admin’s lack of processing. These people are simply at large and likely forever will be within American society. As David Frum wrote approvingly at the time, “if liberals won’t enforce borders, fascists will.”

    Biden’s administration tried to end the Title 42 policy this past April in court, but a Louisiana judge ruled proper administrative protocol must be followed to formally lift the program. Lower courts then issued a stay on ending Title 42 until December 21, extended now by the Supreme Court, and traffic backed up at El Paso and other prominent crossing points. Meanwhile, for those who are crossing now, the expulsion of migrants has continued while the protracted legal battle plays out among the government, migrants represented by the ACLU, and now, a group of 19 GOP-led states seeking to intervene in the case.

    The states have argued that they will suffer “irreparable harm” if Title 42 ends and migrants stay in the U.S. for longer periods of time. Between 9,000 and 14,000 people are expected to cross the southern border each day after Title 42 ends (border crossings are now at around 7,000 a day.) The coalition of GOP attorneys general requested the court push back the Dec. 21 end date pending deliberations on an appeal. Migrants are waiting in Mexico, hoping Title 42 will be overturned and they can cross and stay in America. The final decision will likely lie with the Supreme Court.

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