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Biden Promised to Help Asylum Seekers. He Should Start by Repealing Title 42.

The next administration must commit to ending the misuse of a public health law to expel asylum seekers.

Fifty immigrants and community activists rally during a pro-immigration and anti-deportation protest in Philadelphia, Pensylvania, on July 10, 2019.

The Trump administration recently conceded that it expelled dozens of unaccompanied migrant children from the U.S. without a court hearing or asylum interview — in direct violation of a federal judge’s ruling from November.

This development continues a pattern of gross abuse of asylum seekers by the Trump administration — one that President-elect Joe Biden has promised to reverse. His campaign committed to reasserting “America’s commitment to asylum-seekers and refugees,” including by raising the annual cap on refugee admissions, ending Trump’s Muslim ban and putting in place a 100-day pause on deportations.

With only weeks until Inauguration Day, however, there are concerning signs the president-elect is wavering in these commitments. Namely, he has so far remained silent on perhaps the biggest threat to asylum of all — the very provision that Trump used to remove those unaccompanied migrants. It’s a little-known, innocuous-sounding law called Title 42.

Title 42 is a public health law that enables the U.S. government to temporarily prevent non-citizens from entering the country when doing so is necessary to protect public health. Though this law was never meant to apply to immigration, since the beginning of the COVID-19 pandemic, the administration seized on its broad powers to block asylum and deport arriving refugees without any screening.

Such a practice plainly violates international law and is at odds with the U.S. refugee statute. It also fails to advance the thin public health rationale that was used to cloak it. Expelling asylum seekers and children not only involves contact with U.S. immigration officials; it also risks spreading the virus to countries with little capacity to protect against it.

For this reason, public health experts strongly opposed the use of Title 42 to suspend asylum. Yet Vice President Mike Pence pushed ahead over their objections, expelling hundreds of thousands of people to danger, including unaccompanied children.

In November, U.S. District Judge Emmet Sullivan examined the legal basis of the Title 42 program and found it to be incompatible with U.S. laws protecting trafficking survivors and migrant children. As a result, he threw out the policy as applied to minors traveling alone (though it remains in effect for single adults and family units).

But, as recently revealed, the administration kept deporting children without due process. At least one of these children, according to the administration’s own concession, was a U.S. citizen.

With the law and common humanity urging against such a policy, one might think ending Title 42 would be an easy sell for the incoming Biden team — especially when they have sworn to protect asylum seekers.

However, influential voices on both sides of the aisle have started urging the incoming administration to slow-walk the lifting of such restrictions, arguing that any sudden easing of the asylum shutdown might create the impression of a border “surge.” The result, they say, would be to put the rest of the new administration’s agenda at risk.

A November 26 article in CBS News cited a leader of the Migration Policy Institute suggesting the incoming Biden administration should “temporarily retain the expulsion policy[.]” More recently still, NPR ran a piece on December 13 quoting an analyst at the Bipartisan Policy Center, who advised that Biden “must be careful not to unwind Trump’s restrictions too quickly.”

His latest comments suggest Biden may be thinking along the same lines. On a recent press call, the incoming president reiterated his commitments to end many of Trump’s anti-immigrant policies (albeit gradually). But “Title 42” was still nowhere on the list. On the campaign trail and since the election, Biden has refrained from declaring his intent to end this program — a silence that is becoming increasingly glaring.

With only weeks until Biden takes office, the idea that he should leave Trump-era border restrictions in place, at least temporarily, seems to be fast approaching the status of “conventional wisdom” — at least in some policy circles. This fact underlines just how low the bar for immigration policy has been set in the Trump era. Under a new administration pledged to a more humane course, restoring asylum rights under the law should be the bare minimum. This is all the more true when that administration won office due to wide margins of support and historic levels of turnout among Latinx voters and recent immigrants.

Arguments against quickly ending Trump’s asylum blockade show how willing many have become under Trump to accept the unacceptable. Yet, however prevalent, these arguments are a counsel of moral cowardice.

If the administration were to heed this advice, it will be putting political expediency ahead of people’s lives. Every day that families are forced to wait in makeshift camps on the other side of the border, they are prey to extortionists, kidnappers and other predators who take advantage of migrants’ precarious position.

For these reasons, many asylum-seeking families cheered when it first became clear Biden and Kamala Harris might win the election. The incoming administration must not disappoint the hopes of people who have pinned their futures and their children’s safety on the promise of a change of course.

It is true that Trump’s policies have created a backlog of people on the opposite side of the border who are anxious to exercise their right to seek safety and protect their families. The result of a policy correction will therefore likely be an uptick in asylum claims, once Biden starts to ease Trump’s restrictions. No doubt this in turn will yield political blowback, especially from racists and right-wingers.

Yet this scenario is one that a powerful and rich country like the United States is more than equipped to handle. We need not be frightened of the political consequences of doing the right thing, and our people have the resources and heart to welcome asylum seekers who put their faith in the United States.

Biden and Harris should keep the faith as well — by ending the Title 42 policy immediately.

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