The End of Title 42 Will Not End Injustice

By UUSC Staff on December 2, 2022

For more than two-and-a-half years, the U.S. government has violated its legal obligations to asylum-seekers by unilaterally suspending access to asylum hearings at the border. In a ruling last month, a federal judge finally confirmed what we and our partners have been saying all along: this cruel anti-asylum policy—known as “Title 42” for short—is unlawful and must end. 

Even as we applaud this long-overdue victory, however, we know that the end of Title 42 will not spell the end of all U.S. government attacks on internationally-protected asylum rights. In essence, all ending Title 42 does is restore ordinary immigration law at the U.S. border—and we know from decades of experience that this law was already unjust, criminalizing, and stacked against refugees of color from the beginning. 

More concerningly still, we’ve already seen reports that the Biden administration plans to implement a host of other cruel anti-asylum measures as soon as Title 42 goes away. We can count the demise of Title 42 as a victory, that is to say—but it will be far from the end of the work that is needed to advance migrant justice. 

First, though—Is Title 42 Really Over?

Probably, but we can’t yet be certain. Under a five-week extension the federal court granted at the Biden administration’s request, the policy remains in effect until December 21. And we have seen similar scheduled end-dates to the Title 42 policy come and go in the past without the policy actually ending. In the spring, the Centers for Disease Control and Prevention sought to terminate the Title 42 order, only to have right-wing states intervene in court to force it to remain in effect. 

The November 15 decision by Judge Emmet Sullivan overrides this earlier court order by rendering it moot (as the New York Times explains, this is because Judge Sullivan’s ruling found the Title 42 policy to be itself unlawful, and did not concern the conservative states’ argument that the administration’s procedure for ending it was wrong). As a result, Judge Sullivan’s order is controlling, and the administration has to move forward with ending Title 42 by December 21, unless they appeal the decision to a higher court. 

So far, the administration has not explicitly said one way or the other whether they will appeal the ruling. In the meantime, 15 right-wing state governments have also intervened in court again to try to compel the administration to keep the policy in place a second time. If the Biden administration were to appeal Judge Sullivan’s ruling, or the conservative states were to prevail in their round-two challenge, this could keep the Title 42 policy in place even longer. 

This would be a disastrous outcome. It would strand asylum-seekers in deadly conditions—where thousands of people have already experienced kidnapping, rape, extortion, and other forms of persecution—even longer than it has already. We therefore urge the administration not to appeal Judge Sullivan’s ruling, and we hope no other court will step in before December to keep this policy in effect a day longer. 

What Happens Next? 

In an ideal world, the end of the court-ordered implementation of Title 42 would mean a chance to fully restore asylum access at the border and improve justice and due process for people fleeing persecution. The reality, however, is that even with Title 42 taken off the table, the U.S. government has a host of other tools under decades-old immigration law to penalize, detain, and otherwise discourage asylum-seekers from accessing their legal rights. 

In short: if the Department of Homeland Security wants to take a harsh anti-asylum stance, they still can, even after Title 42’s end. And to the Biden administration’s disgrace, early reports indicate that this is precisely what they mean to do. 

As they prepare for the end of Title 42, administration officials are reportedly considering whether to surge criminal prosecutions of people who cross the border without authorization, as well as whether to deport more people under the process known as “expedited removal.” Both would be disastrous for asylum-seekers’ rights and the rights of other people in migration. 

Criminal Prosecutions for “Unlawful Entry”

As terrible as Title 42 has been for asylum rights, one of its unintended side-effects is that it resulted in fewer criminal prosecutions for unlawfully crossing the border. Because Title 42 expulsions could take place almost instantly, and with no due process, it ensured that people—even if they were expelled to harm—at least did not face detention, prosecution, and criminalization in U.S. courts. The end of Title 42, therefore, might—perversely—see a surge in criminal prosecutions of people who have done nothing more than cross the border outside of an official port of entry. 

Under international law, governments are not supposed to penalize asylum-seekers who cross the border without permission (see Article 31 of the UN Refugee Convention), so long as they promptly request protection—as most asylum-seekers do. The purpose of this provision is to protect people from facing criminal charges just for fleeing for their lives to escape persecution. 

The United States, however, has a century-old law on the books that makes it a federal crime to cross the border without permission, without any exception in place for asylum-seekers. This law was created with an explicitly racist intent (and has been racist in its impact as well, as at least one federal court has recognized); but this has not stopped multiple U.S. administrations from using it to criminalize nonviolent border crossers and asylum-seekers. Indeed, the Trump administration used it as one of its methods of separating immigrant families—oftentimes criminally prosecuting asylum-seekers even when they were traveling with their children, resulting in forced separation. Prosecutions under this statute usually take place in mass proceedings with minimal due process. 

“Expedited Removal” 

Another cruel policy that was effectively superseded so long as Title 42 was in effect is known as “expedited removal.” While this policy is a slight improvement on Title 42—because it at least includes a carve-out in theory for people who fear persecution—it is nonetheless harshly penalizing and designed to deter asylum-seekers in practice. 

Under expedited removal, people are subject to summary deportation unless they express fear of persecution or torture in their home countries. If they do claim this fear, they are then frequently confined in prison-like immigration detention facilities and must pass a “credible fear” interview. Only after running the gauntlet of this test do they finally get the chance to pursue their case in immigration court, where they still must convince a judge to grant them asylum, while U.S. government attorneys argue against their case. The asylum-seekers themselves are not guaranteed any legal representation, unless they can afford it through private means. 

This is the eye of the needle through which asylum-seekers already had to pass long before Title 42 was a glimmer in Stephen Miller’s eye. As we can see, therefore, the U.S. immigration system was already built to presumptively punish asylum-seekers—particularly Black and Brown asylum-seekers—even though they are doing nothing other than trying to exercise their legal right to a safe haven from persecution. 

An end to Title 42, however welcome, could just bring back into effect the old way of treating asylum-seekers—which, while marginally better than Title 42 perhaps, nonetheless still included things like mass criminalization, mass detention, or even worse. We should never forget, after all, that Trump was able to carry out his cruel family separation policy under immigration laws that existed long before Title 42 was even contemplated. 

We urge the Biden administration not to go down this same cruel path. The end of Title 42 should be a chance for the administration to finally make good on their campaign promises to protect the rights of asylum-seekers and turn the page on their predecessors’ unjust policies. To the extent that they are considering criminalization and expedited removal instead, we urge them to immediately shift to a better course. 

In honor of the holiday season, learn more about activities you can be participating in to continue advancing a movement for a more just immigration system in the United States.

Photo Credit: Raymond Boyd/Michael Ochs Archives via Getty Images