Those who support maintaining Title 42 point to an overtaxed immigration system on the brink, one that would have been pushed beyond its limits with the repeal of this Trump-era policy.
The Biden administration had sought to end Title 42 on Monday, May 23, but the repeal, as expected, was blocked late Friday, May 20, by District Judge Robert R. Summerhays.
Like many, we had concerns about the Biden administration’s preparedness to handle any influx of migrants, estimated to grow to as many as 18,000 a day, had Title 42 been repealed.
But we don’t support Title 42, which is neither a policy solution nor an effective deterrent. It is a public health law, not an immigration law, that has been used to deny people their legal right to claim asylum, spurred dangerous and deadly crossings, and also prompted repeat crossings.
The very existence of Title 42 — which we view as a legal shortcut — shows the dire need for comprehensive immigration reform. This lack of reform, coupled with a bitter political environment, is why our Editorial Board will be further exploring border and immigration issues throughout the summer and fall, seeking to cut through the political rhetoric to advance meaningful policy solutions.
We, too, want a safe, secure southern border. We want an immigration system that has penalties for illegal entry, supports border communities, honors asylum claims and efficiently processes people.
As for Title 42, we see a misapplied public health law that has become a political lightning rod.
Title 42 dates back to 1944 with the aim of preventing the spread of communicable diseases. Its antecedent is an 1893 law designed to prevent the spread of cholera.
The Centers for Disease Control and Prevention invoked Title 42 on March 20, 2020, as the COVID-19 pandemic took hold in the United States.
“But, really, I think the Trump administration saw it as far less of a public health measure and far more of a way to block unwanted migration,” Mark P. Jones, a political science professor at Rice University and the Joseph D. Jamail Chair in Latin American Studies, told us.
Title 42 has resulted in nearly 2 million expulsions. But as Aaron Reichlin-Melnick, senior policy counsel with the American Immigration Council, testified to Congress on April 6, “Title 42 itself has been a major contributor to increased border crossings because it caused a significant increase in repeat border crossings.”
In a subsequent interview, Reichlin-Melnick told us, “Because it’s not an immigration law, a Title 42 expulsion carries no immigration consequences.”
He continued: “The most likely outcome of an expulsion under Title 42 is simply going to be a bus ride back to Mexico, if you are caught. And that incentivized a lot of people to start crossing the border repeatedly, rolling the die every time.”
To repeal Title 42, he said, would have spurred an initial influx of migrants. But in the longer term, he said, numbers would likely stabilize and decrease with a return to traditional immigration law.
And here is another point to consider: Title 42 has created much of this pressure.
“Certainly, there would be a lot of people, but that situation is the result of more than two years of violating international law by not processing asylum-seekers,” said Erica B. Schommer, a clinical professor at St. Mary’s School of Law.
Initially, a repeal would be messy, she said, “but it is a mess that we made.”
To solely focus on numbers ignores humanitarian concerns. Title 42, coupled with Remain in Mexico, has forced asylum-seekers to either wait in Mexico, at great risk, or attempt potentially deadly crossings.
“Title 42 has actually pushed people into making that perilous journey through either the desert or across the Rio Grande,” Maurice Goldman, an Arizona-based immigration attorney and past president of the Arizona chapter of the American Immigration Lawyers Association, told us.
Yes, federal officials and border communities are stressed to the max. There were more than 177,000 U.S. Customs and Border Protection “encounters” in the Yuma, Ariz., sector through April of this fiscal year, a 401% increase over the prior year, and there were more than 236,000 encounters in the Del Rio sector through April of this fiscal year, an increase of 161 percent.
But Title 42 has so many exceptions, it is “more of a symbolic provision at this point,” Goldman said. “It’s giving people this sense of security that probably isn’t even there.”
As Sister Norma Pimentel, executive director of Catholic Charities of the Rio Grande Valley, told us during a visit to the Humanitarian Respite Center in McAllen on Monday, May 16: “I think that the United States, it needs to have control of who enters the country but, at the same time, must have a pathway to enter the country legally, safely, orderly, and that is through the ports of entry, through the bridge. And right now, that is happening through exceptions to Title 42.”
Title 42 is neither grounded in immigration law nor is it mitigating COVID or alleviating illegal immigration. It reflects our failure to address root causes of immigration, bolster border communities and prioritize modern-day security. It is the product of a broken system, not a solution.
San Antonio Express-News
