ACLU challenges Biden on border restriction

Elket Rodriguez works as an immigration and refugee specialist for the Cooperative Baptist Fellowship. He says he recently met a Honduran mother at a shelter in the Mexican city of Nuevo Laredo. She told him she fled Honduras after the cartel murdered her partner and 17-year-old son, then tried to rape her 8-year-old daughter. The mother and her two remaining children entered the United States but were returned to Mexico with no chance to request asylum. Under Title 42 of the U.S. Code, the United States is expelling migrants as a public health risk. Unaccompanied minors are the exception, so the mother decided to send her 12-year-old son across the U.S. border alone to keep him safe from the cartel in Mexico.

“What’s heartbreaking is that these stories are not uncommon,” Rodriguez said.

On Aug. 2, the Centers for Disease Control and Prevention extended an order invoking Title 42 to ban migrants from entering the country. The CDC reasoned that the surging coronavirus variants made accepting migrants too risky, but some argue the administration is stalling.

Title 42 was already in place when President Joe Biden took office, but under his administration, the CDC added an exception for unaccompanied minors. Biden also resumed admitting the migrants waiting to claim asylum under Trump’s Migrant Protection Protocols program, also called “remain in Mexico.” Currently, the United States is turning away all asylum seekers under Title 42—except those Mexico refuses to accept back. Certain sectors of Mexico do not have the capacity to shelter migrant families, so the United States will fly these families to a different section of the border or allow them to stay in the country under normal Title 8 proceedings. The inconsistent application of Title 42 is confusing, as reports spread of Immigrations and Customs Enforcement officials releasing the families in the United States with only a notice to report to ICE later, and Texas towns discover migrant families with COVID-19 in public.

July data show that Customs and Border Protection made 212,672 total apprehensions, the highest number in 21 years. Almost all of these occurred between ports of entry, and many were single adults attempting another crossing after being previously expelled.

In March 2020, the Trump administration invoked Title 42 to refuse entry for all border crossers to prevent the spread of COVID-19. Candidate Joe Biden promised to reverse Trump’s policies, and, initially, Biden’s team announced it would lift Title 42 this summer. But the country’s recent resurgence of COVID-19 cases convinced the administration to maintain the policy until “further introduction of COVID-19 into the United States from covered noncitizens has ceased to be a serious danger to the public health.”

The American Civil Liberties Union previously brought a lawsuit against the Trump administration over Title 42, seeking to reopen the border. The ACLU initially agreed to pause legal proceedings when Biden took office, but the Aug. 2 order prompted it to resume the lawsuit and file an injunction to prevent enforcement of the order. “The Biden administration asked for some time to fix what it said were problems created by the prior administration. We gave them more than sufficient time,” ACLU lawyer Lee Gelernt told NPR.

Ali Noorani, president of the National Immigration Forum, was not surprised the administration decided to maintain the Title 42 order, and he doubts that the move will change much: “There is no indication that Title 42 has served as an effective deterrent against border crossing, with border numbers steadily rising going back to Spring 2020—virtually the entire time Title 42 has been in place.”

Noorani observed that Title 42 lets the United States remove people quickly, which could relieve some pressure on the clogged system. But Title 42’s lack of penalties for attempting to enter illegally encourages people to try crossing again and again, which adds a degree of strain. In June, around one-third of total apprehensions at the border were repeat crossers. He recommends that the administration should follow the lead of health authorities regarding when to end Title 42 restrictions and in the meantime work towards safely processing asylum seekers who need protection.