The Centers for Disease Control and Prevention (CDC) has announced that it will lift enforcement of Title 42 on May 23, 2022. The policy, which has been in effect since March 20, 2020, allowed Customs and Border Patrol (CBP) agents to turn away asylum seekers at the Southern border for fear that they could introduce a communicable disease into the United States. With the policy in their arsenal, federal officials could conclude the immigration process for asylum seekers within 15 minutes, turning them away at incredibly high rates, without affording them a meaningful opportunity to seek asylum. Since its adoption in March 2020, Title 42 has been used to expel immigrants at the Southern border as many as 1.7 million times.
The Trump administration’s repeated use of Title 42 was unsurprising. Title 42 provided the U.S. Department of Homeland Security (DHS) with an opportunity to effectuate one of the Trump administration’s priorities – to bring legal migration to a near standstill. If Trump’s words on the campaign trail, during which he referred to Mexicans as “rapists,” did not sufficiently convince the populace of his disdain for immigrants, one need only look at his administration’s enforcement of inhumane immigration policies. From detaining unaccompanied children for more than the legal 72-hour limit and placing them in cages with concrete floors and freezing temperatures, to admitting the lowest number of refugees since the enactment of the Refugee Act of 1980, the Trump administration was adamant about discouraging migrants from seeking legal relief to obtain entry and reside in the United States.
Despite promising to change the Trump administration’s harsh immigration policies, the Biden administration decided to continue using Title 42 to quickly deny asylum applications at the Southern border. While some pointed to the country’s alarming Covid infection rates to justify the administration’s judgment, others were not so quick to agree. A senior State Department official, Harold Koh JD ‘80, resigned from his role in the Biden administration due to Title 42’s continued enforcement, which Mr. Koh referred to as “illegal” and “inhumane” in a departing memo. In his memo, he contrasted the vastly different approach the Biden administration was taking with regard to Afghan refugees as opposed to the blanket denial of asylum toward the thousands seeking asylum at the Southern border.
The Biden administration’s failure to rescind Title 42 within the first year of the Biden presidency stems from a larger issue in United States immigration policy. Unfortunately, Title 42 is not the first time that the United States has decided to label immigrants a “health risk” to prevent legal migration. In the 19th century, immigration officials conducted lengthy medical examinations of Irish immigrants, Chinese immigrants, and immigrants of other nationalities to determine whether they posed a health risk to the country. The issue back then, as remains today, is not just about the United States’ goal of maintaining a healthy populace but rather also about its insistence on perpetuating the myth that immigrants pose a health risk for the country.
By indiscriminately using Title 42 to issue a blanket rejection of asylum to people at the Southern border in the name of health precautions, the policy essentially discriminated against immigrants from the Southern hemisphere, whose asylum claims may have been valid, but who were nevertheless stripped from their opportunity to be heard. Without Title 42, the Biden administration will no longer be able to evade managing the large number of migrants seeking asylum on our Southern border. Instead, the administration will be forced to do what it should have done from Day 1 – provide personal protective equipment and vaccines to asylum seekers, assess the merits of each and every asylum application, and reform the crumbling immigration court system.
The Biden administration can allay the fear of increased COVID-19 cases at the border by ensuring that asylum seekers receive vaccinations upon filing an application for asylum. The United States has promised to donate 1.1 billion doses of COVID-19 vaccines for global use before 2023. With such an incredible number on the table, there is little excuse for the administration to refuse to send doses of vaccines to the Southern border. The administration has begun to offer COVID-19 vaccines to some undocumented immigrants at the border, but it is capable of ensuring that every person seeking relief is afforded a vaccine.
Assessing the merits of every asylum application is intrinsically linked to the nation’s crumbling immigration court system. As of January 2022, there were about 1.6 million cases pending in the immigration court system, with cases taking, on average, 58 months, or nearly five years, for resolution. In response, immigration authorities have employed policies, like Title 42, to avoid evaluating applications on their merits, and instead fast-tracking cases to lower the burden on immigration judges. However, this approach has been a complete failure. Such policies have not only harmed asylum seekers, but have done little to assuage immigration judges’ unmanageable dockets. A study in 2019 found that as many as 20 percent of immigration judges had caseloads of 4,000 or more cases. The recent increase in migrants at the border point to these numbers rising even higher today.
For many, the solution to the overburdened immigration court system, known as the Executive Office of Immigration Review (EOIR) is to provide more resources – more judges, more courtrooms, and more funding. However, a more ambitious and promising solution was recently presented by several House members who introduced H.R. 6577, a bill known as the Real Courts, Rule of Law Act of 2022. The bill would establish Article I United States Immigration Courts, which would withdraw our immigration court system from the purview of the Department of Justice and establish an independent court system, much like United States Tax Courts and United States Bankruptcy Courts. By removing the immigration court system from executive influence, the United States Immigration Courts could apportion their funding to meet the goals of the court system, rather than the policy goals of any presidential administration. The Real Courts, Rule of Law Act faces an increasingly difficult road ahead. Executive officials, as well as many Congressional representatives, are likely to be wary of a bill that significantly removes immigration courts from the political branches’ grasp. Nevertheless, Congress and the President must find the courage to accept a diminution in their control over immigration policy and instead focus on the benefits of having a functioning immigration court system.