Policy allowing migrants to be expelled during COVID-19 emergency has ended; what will be its legacy?
A federal policy used to expel migrants expired May 11, when the COVID-19 pandemic public health emergency ended. The government’s authority to invoke the public health policy, known as Title 42, had since March 2020 been used to expel migrants without evaluating their potential asylum claims. Legal analysts are now turning their attention to the longer-term influence of how the nation’s most restrictive border policy was used and potential precedents it could set.
Title 42, or more specifically Section 265 of 42 U.S. Code, dates back to 1944 and enables federal health authorities to prohibit entry for migrants to prevent the spread of contagious diseases. The Centers for Disease Control and Prevention invoked the law under then-President Donald Trump’s order—with CDC career staff objections reportedly being overruled by the White House—during the pandemic to give all border authorities the ability to expel migrants trying to enter the U.S, either back to Mexico or directly to home countries, without an asylum process.
The bottleneck the policy created for those hoping to petition for asylum at the southern border has authorities worried that thousands of migrants will try to enter in its immediate aftermath, prompting the Biden administration to take multiple steps to limit arrivals. Most notably, it would make those who crossed through other countries prior to reaching the U.S. ineligible for asylum if they had not requested and been denied asylum in the countries they traveled through. And some lawmakers, including Sens. Kyrsten Sinema (I-Az.) and Thom Thillis (R-N.C.) have tried to extend a version of the order with a proposed bipartisan bill.
Biden also has focused his efforts on external processing, opening up processing centers in Latin America and ramping up the use of the refugee system and discretionary programs like humanitarian parole, while continuing to enact restrictions on asylum at the border. With measures like requiring use of the troubled CBP One cellphone app for migrants to secure appointments to even apply for asylum and the deployment of troops at the border, some experts predict that in the long term with regard to crossing the border, “we will never go back to what it was before Trump.”
“With [Title 42] ending, the main concern is that there are new asylum regulations that are going into effect, and the issue is that people still will not have access to seek asylum at the border,” says Karla McKanders, chair of the ABA’s Commission on Immigration. “This new regulation is going to curtail people’s ability to seek asylum.”
Since 2020, U.S. Customs and Border Protection has conducted more than 2.5 million expulsions at the southern border using the measure, according to the customs office’s data. Those in favor of extending the policy have called it a necessary restriction for controlling border flows, while those opposed have expressed humanitarian concerns over sending asylum seekers back to dangerous environments without due process.
The policy’s implemetation during the public health crisis allowed the government to set aside immigration law of Title 8 of the U.S. Code—which pertains to aliens and nationality—at the southern border.
But the use of the measure during the pandemic raises questions among legal experts about the government’s stance toward compliance with immigration law going forward. If the pandemic emergency could be used to suspend normal asylum processing for more than three years, what other emergencies could be invoked to set aside immigration law in the future?
“Title 42 is a dangerous way to pretextually regulate the border,” says attorney Lee Gelernt, the deputy director of the American Civil Liberty Union’s Immigrants’ Rights Project in New York City. “It was not intended as an immigration measure, but that’s what a lot of states [were] trying to use it for. Even as a public health measure, we do not think it was necessary.”
Public health professionals and epidemiologists also have written in prominent journals such as Nature and The Lancet as well as in open letters claiming the narrow order was not necessary or helpful in managing the emergency.
Similarly, McKanders, who is also a law professor at Vanderbilt Law School and the director of its immigration clinic, says the measure wasn’t needed. “Throughout the use of Title 42, health experts indicated that it wasn’t necessary to halt the asylum seekers’ ability to come to the border, ask for asylum and go through the standard procedures.”
McKanders fears Biden’s new regulation will be akin to Title 42 and other bans under the Trump administration. “With immigration law, the president, the executive branch, has wide discretion over immigration when it comes to national security.”
Before implementing the measure, Trump and his adviser Stephen Miller’s flagship restrictive immigration policies were still rooted in the immigration law, including relatively obscure provisions like third-country asylum agreements to send migrants to seek asylum elsewhere. They also maximized the scope of existing powers, such as with the expansion of an authority meant to speed up deportations and widescale bans on nationals from entire countries—known colloquially as the Muslim and African bans.
Some of these policies survived contact with the courts, but a perennial weak point was that they had to somehow harmonize with the rest of the immigration legal framework—namely, the right to seek asylum.
When employing Title 42, however, the government didn’t have to prove compliance with the asylum statute, and in fact openly admitted that it wasn’t. That tension was raised in a 2022 exchange between D.C. Court of Appeals Chief Judge Sri Srinivasan and Department of Justice attorney Sharon Swingle during oral arguments in Huisha-Huisha v. Mayorkas, brought by the ACLU in January 2021. Gelernt was one of the attorneys integrally involved in the case.
In Huisha-Huisha, a group of asylum-seeking families brought a suit against then-Secretary of Homeland Security Peter Gaynor (eventually superseded by current Department of Homeland Secretary Alejandro Mayorkas) and various government officials for violating several federal laws, such as the Administrative Procedure Act and the Immigration and Nationality Act.
“What you say is [Title 42 Section] 265 takes control because it deals with a specific context of the kind of emergency we’re dealing with here, so it supersedes, overrides or carves out from what otherwise would be the case under Title 8,” said Justice Srinivasan. “I’m trying to figure out … how do we assess which side has it right in terms of which statutory regime governs.”
Swingle responded that the government was conscious of its choice to suspend immigration law under the pandemic circumstances.
The United Nations High Commissioner for Refugees filed an amicus brief in the case detailing how the U.N. itself, in developing the post-WWII refugee standards that became the basis for most of the world’s humanitarian migration systems, specifically considered and then rejected the notion of building in carveouts for public health emergencies.
Aaron Reichlin-Melnick, the policy director at the American Immigration Council, says Congress debated asylum protection extensively over the past 40 years but upheld it.
However, during the pandemic, Reichlin-Melnick says, many people were willing to toss that all out. “I think it’s going to be very hard to put that genie back in the bottle.”
Concerns over the public health law’s long-term impact also extended to the intervenor states’ efforts to stop the government from winding down the policy.
President Joe Biden’s administration’s attempts to lift the order met resistance in 2022 and several states sued, ultimately reaching the U.S. Supreme Court; the measure, meanwhile, remained in place.
In Louisiana v. CDC—brought by the states of Louisiana, Arizona and Missouri—the plaintiffs emphasized in the complaint their reliance interests in keeping the policy in place as a border control measure, sidestepping not just the question of whether it violated federal immigration law, but also whether it had a nexus to public health, ostensibly the order’s whole purpose.
Plaintiffs say terminating the measure would “create increased crime and drug trafficking in Louisiana’s communities, requiring additional expenditure by law enforcement. In addition, by incentivizing further illegal immigration, the Rule will force Louisiana to expend limited resources on education, health care, public assistance and general government services.”
If states claim they’re relying on any particular border restriction, says Gelernt of the ACLU, “then essentially they’re given the ability to be an equal partner with the federal government to regulate immigration.”
Andrew Arthur, a former immigration judge now serving as the resident fellow at the Center for Immigration Studies, a restrictionist think tank, dismisses some concerns over the states’ and the administration’s positions.
“You don’t have a right to apply for asylum; you have an opportunity to apply for asylum, which is granted to you by statute. But it’s subject to so many limitations,” Arthur says, noting that a version of the Title 42 entry restriction predates the Immigration and Nationality Act. “Under the canons of statutory interpretation, you read those more recent provisions to be consistent with the prevailing law unless they expressly state that they’re not consistent.”
The discretionary nature of asylum grants, Arthur says, could be read as allowing discretionary access to the system itself, although that’s not a view that has strong case law backing.
Limiting asylum, he adds, is, paradoxically, the only way to save it, as asylum claims are expected to keep rising in the potential aftermath of the end of the public health order.
As things stand, Title 42’s potential to set precedent remains unclear. The government’s appeal in Huisha-Huisha was held in abeyance at the D.C. Circuit Court in anticipation of a Supreme Court ruling that never came, and the case will presumably now peter out. The states also may attempt further legal action.
Neither the Justice Department nor the Louisiana attorney general’s office responded to ABA Journal’s inquiries about whether they would move to withdraw the appeal or file any new complaints, respectively.
As for Gelernt, he believes some of the damage has already been done. “Once the government says we don’t need to comply with the immigration laws, to regulate immigration, we’re in dangerous territory.”
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