Title 42 remains for now

Ana Gabriela Garcia intended to cross into the United States legally with her husband and their traveling companion after learning that pandemic immigration restrictions would expire on Dec. 21. The trio from Venezuela traveled to Juarez, Mexico, across the border from El Paso, where they waited for the end of Title 42, the public health order that allows immigration authorities to expel immigrants before they can ask for asylum.

When Dec. 21 came and the policy remained in effect, thousands of migrants decided not to wait any longer. “We came illegally through a gate in the border wall,” Garcia told the New York Post during an interview in an El Paso church. “We know the risks … pros and cons, but we have to make the sacrifice.” Many migrants ended up on the streets of El Paso, wrapping themselves in piles of blankets to ward off freezing temperatures.

On Nov. 15, U.S. District Judge Emmet Sullivan said Title 42 did not have a public health basis and interfered with the right of immigrants to seek asylum. He gave the Biden administration five weeks to end the measure. But Title 42 is still in place. Experts say it may not be going anywhere anytime soon.

Anticipating an even greater humanitarian crisis, 19 Republican states led by Arizona made an emergency appeal to the Supreme Court after the U.S. Court of Appeals for the District of Columbia Circuit ruled against the states. “Failure to grant a stay here will inflict massive irreparable harm on the states, particularly as the states bear many of the consequences of unlawful immigration,” Arizona Attorney General Mark Brnovich told the justices.

Chief Justice John Roberts joined four conservative justices in temporarily overruling the lower court’s end to the policy. Justice Neil Gorsuch dissented with the three liberal justices. “Courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency,” Gorsuch wrote in the minority opinion. “We are a court of law, not policymakers of last resort.”

The Supreme Court will hear arguments in February about whether the states may challenge the District Court’s order to end Title 42.

Muzaffar Chishti is a senior fellow with the Migration Policy Institute. “The justices, like all the rest of us, are seeing the same images on the screen. … It looks like a crisis. It sounds like a crisis,” he said, “In many ways, [Roberts] was issuing an invitation to the administration, ‘Look, could you tell us what your plan is?’”

Title 42 will remain in place until at least February and perhaps months later, Chishti said, if the courts decide to hear another case on the merits of the policy. The current issue is narrow: Do the states have the right to intervene in the case? Given the ever-expanding role of states as major players in the immigration debate, it’s a significant question.

Resolving the Title 42 legal ping-pong will not solve the border chaos, since Title 42 is not the main tool the administration uses. Last month, only 29 percent of 233,740 encounters resulted in Title 42 expulsions.

Nicaraguans and Cubans aren’t sent back under Title 42 because the United States can only expel immigrants under the policy if their home countries will receive them. Tense diplomatic relations between those countries and the United States prevent deportation, and Mexico refuses to accept them.

“In reality, it’s not being used to the effect that people … think it’s being used,” Chishti said. Most immigrants are processed under Title 8, given a future court date and an alternative to detention, and released into the U.S. to wait for their hearing.

Under Title 8, immigrants who cross the border without authorization are subject to expedited removal and can be expelled unless they ask for asylum. Authorities must determine whether they have a legitimate fear of persecution before moving their asylum cases forward.

Those who pass the first interview end up in a immigration court backlog with 1.9 million cases—a wait that can take years. Chishti said the logjam is an incentive for people to enter the country illegally, and it hurts legitimate asylum-seekers stuck in the massive line.

“What we really need is a system that adjudicates claims quickly and fairly,” said Danilo Zak, assistant vice president of policy and advocacy for the National Immigration Forum. “[One that] allows people who have a legitimate case for asylum to remain in the U.S. and be protected from persecution, and allows people who aren’t eligible to be quickly returned.”

A new Biden administration rule allows asylum officers to decide some cases instead of immigration judges. More asylum officers are needed to work through the backlog, Zak said.

Even though Title 42 affects a minority of migrants, the policy has become a “talking point,” Chishti said, for smugglers, immigrants, and politicians who don’t want to address long-term solutions.

Chishti argued that to make real change the Biden administration must acknowledge there is a crisis — “which they don’t do, at least publicly,” he said — and institute consequences for unlawful crossings. He also wants to see immigrants receive more legal representation.

In the meantime, officials should detain immigrants instead of releasing them, Chishti said. “There has to be visible enforcement which sends a message … just because you make it to the border doesn’t mean you make it to Los Angeles and New York, which is not true today.”