Published On: Wed, Dec 28th, 2022

Supreme Court Title 42 vote keeps border shut to asylum seekers, and Biden policy close to Trump


A border closure policy originally enacted by the Trump administration will for now remain in place after the Supreme Court on Tuesday agreed to consider the argument of 19 Republican-controlled states fighting to keep the measure alive. 

The policy, known as Title 42, had already been ruled unlawful by a federal judge. But the nation’s highest court will now weigh whether Republican-led states can continue their legal intervention to defend Title 42, allowing the extension of an inhumane policy that denies asylum-seekers entry into the United States. But it’s not only Republicans who are working to bar migrants. 

Epidemiologists, public health experts and even CDC officials themselves have attested that there is no public health rationale for denying people their right to seek asylum at the U.S. border.

Though President Joe Biden is now pushing for an end to Title 42, he previously fought in federal court to preserve the policy despite his campaign promise to restore asylum. That promise is only one of many that he has broken; Biden needs to remove all of the Trump-era immigration policies that have until now stayed in place.

In the case of Title 42, the Trump administration took advantage of the onset of Covid-19 by having the Centers for Disease Control and Prevention order the immediate expulsion of migrants seeking asylum. This has left those fleeing war, violence, drought and persecution with no legal process through which they can assert their right to protection under the law. 

Title 42 was never about public health. Epidemiologists, public health experts and even CDC officials themselves have attested that there is no public health rationale for denying people their right to seek asylum at the U.S. border. 

Indeed, Title 42 came to be after the Trump White House reportedly put the squeeze on the CDC. The policy fulfilled the pipe dream of Donald Trump’s chief presidential adviser on immigration, Stephen Miller, who pushed for ideas attributed to the mainstreaming of white nationalism in and out of the White House. It’s no coincidence that Title 42 has disproportionately denied Black and brown migrants their right to seek asylum.

The longer this farce played out, the more apparent the racist double standard became. As the U.S. opened its ports of entry to tourists and other immigrants such as Ukrainian refugees, people seeking asylum — even those with proof of Covid-19 vaccination status — have continued to be blocked and expelled because of Title 42.  

In addition to its inherent inhumanity, Title 42 also flies in the face of the United States’ international and legal obligations requiring that people seeking asylum receive an individualized assessment of their asylum claim before they can be deported to a country where their life would be threatened. Title 42 has denied this right to more than 2 million migrants, all the while leading to confusion and grave humanitarian failures along the border. 

As the Biden administration previously fought to maintain the policy in federal court, Human Rights First documented that more than 10,000 reports of abuse — including killings, kidnapping, torture, rape and other violent attacks — occurred as migrants were left to languish in streets and shelters in Mexico. The Supreme Court’s latest ruling will only ensure that these abuses continue. 

Far from the exception, Biden’s handling of Title 42 fits into a troubling pattern of continuing the cruelty of Trump’s approach to immigration. Other anti-asylum policies cooked up by Miller are being considered in the Biden White House, such as the “transit ban,” an unlawful policy that effectively slashes the number of migrants who would qualify for asylum. Haitian migrants fleeing violence and discrimination have faced deportations and mass expulsions under Biden since Border Patrol agents on horseback chased them in Texas in September 2021. And in federal courtrooms, the Biden administration has repeatedly sought to dismiss lawsuits brought by families separated under Trump’s horrifying family separation policy. 

Biden’s lawyers at the Justice Department have even gone so far as to defend the private prison industry’s stake in locking up immigrants en masse. Despite repeated promises to end for-profit immigration detention, Biden carried on his predecessor’s backing of GEO Group, a massive private prison corporation, in a federal lawsuit aimed at overturning California’s private prison ban

Meanwhile, the number of people held in the immigration detention system has already nearly doubled since the beginning of the Biden administration, and the number of migrants surveilled by digital forms of incarceration has skyrocketed. Both detention and Immigration and Customs Enforcement’s web of surveillance are plagued by racism and abuse

While Biden promised to turn the dial back on the rising tide of hate and extremism, his actions have breathed life into the vile anti-immigrant legacy of his predecessor, despite voters continuing to reject it at the ballot box

Rather than placating the xenophobes, Biden’s administration must lead with integrity and compassion. The United States has the resources and capacity to be a welcoming nation. 

Biden must change course by doing everything in his power to end Title 42 and ensure that all who have been waiting in peril are afforded the refuge they’ve so callously been deprived. Critically, once Title 42 is finally lifted, it’s imperative that Biden act to welcome migrants with dignity and fairness — not with more detention, surveillance and a militarized southern border. This administration must work to expand, not limit, migrants’ access to the asylum system. 

Biden has thus far squandered the mandate he received to reverse Trump’s immigrant policies. But the gap between Biden’s rhetoric and his actions reflects much more than just political malpractice; the policies we’re talking about can be a matter of life and death, and for nearly two years, migrants have paid the price.




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