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May 17, 2023

The End of the Title 42 Order – a Return To Border Migration Normalcy and Due Process of Law

[Cross-post from Daily Journal]


By Kevin R. Johnson

 

Last week, the Biden administration lifted the Title 42 order put in place by President Trump, which for several years had in effect closed the U.S./Mexico border to migrants. Rather than a feared stampede at the border, the end of Title 42 simply returned the border to the system that has stumbled along for decades. The task before the nation now is how to reform that system so that it responds effectively and efficiently to manage the 21st century of global migration.


In 2020, President Trump issued an order under Title 42, a public health law, which permitted the immediate removal from the country of asylum seekers fleeing violence and persecution. Critics claimed that the President relied on the public health law to rationalize mass expulsions; more generally, that said, he wanted to limit the number of immigrants in the United States, which was consistent with his many efforts to restrict immigration.


As few could miss, the Biden administration’s plan to end the Title 42 border closure made the news. Story after story raised the specter of an uncontrollable influx of migrants storming the U.S./Mexico border.

Given that the Trump Title 42 order had been in place for several years, one might in fact expect that the lifting of the order might be followed, at least temporarily, by an increase in migration. Pent-up demand for migration might contribute to more migration in the short run. President Biden himself cautioned that it might take time for migration flows to stabilize.

Responding to such fears, the Biden administration took steps to deter migrants from unlawfully entering the United States. Indeed, troops were sent to the border. Restrictions on asylum applications also were put into place. Clear legal pathways for Haitians, Venezuelans, Cubans, and Nicaraguans, fleeing nations plagued by violence and turmoil, were created to discourage all unlawful entry.


As it turns out, the end of Title 42 did not result in a flood of migrants. In fact, little has changed along the U.S./Mexico border. Migrants—families among them—still come seeking a better life or sanctuary from violence. However, traffic so far has been manageable.


The truth of the matter is that, as was the case for many years before the Title 42 order, there is a system in place to process the asylum and other claims of migrants. Although far from perfect, the system has operated and enforces the border consistent with the rule of law.

The border closure through the Title 42 order was an easy—and arguably unlawful—answer to proponents of halting migration. But there no longer is a public health emergency that justifies the extreme measure of closing the border and denying any and all rights to migrants. Title 42 simply no longer is a viable policy option.

Moreover, there is no need for radical border closure. Ebbs and flows of migration have occurred regularly in U.S. history. Political turmoil and violence in Central America and Haiti in the 1980s and 1990s led to many U.S. government responses, such as the interdiction of boats of Haitians by Coast Guard cutters and the immediate return of migrants to Haiti.

Policies were also put into place to detain large numbers of Haitians and Central Americans seeking asylum. Congress added to the U.S. government’s tool box in 1996, such as the creation of expedited removal of migrants apprehended at the border without a credible asylum claim, and the increased authorization of detention of migrants. Although some of these measures may be criticized (such as deaths in detention, including some reported last week), they are preferable—and legal—alternatives to an unsustainable and unlawful system of closed borders.


The exaggerated fears of the end of Title 42 are now behind us. The hard work ahead is improving our under-resourced migration system. The U.S. government has returned to a system that permits migrants to apply for asylum and have their claims decided by asylum officers and immigration courts. The difficult task is how to refine that system so it operates efficiently and has the confidence of the American people.