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Biden’s Expansion of Title 42 Takes Us Further From Humane Border Policy

Far from enhancing public health, Title 42 undermines it by creating cruel and inhumane conditions for migrants.

A Border Patrol agent processes asylum seekers at a gap in the U.S.-Mexico border fence near Somerton, Arizona, on December 26, 2022.

Before heading to El Paso, Texas, on January 8 for his first presidential visit to the U.S.-Mexico border, President Joe Biden announced a trifecta of hideous immigration policies, along with a familiar “crackdown” on “illegal” border crossings. The new initiatives include expanding the controversial Trump-era Title 42 to migrants from Venezuela, Cuba, Nicaragua and Haiti as well as refusing asylum to those who crossed the U.S.-Mexico border between official ports of entry and to who traveled through another country but did not seek asylum there. Taken together, these policies promise more death and suffering to people forced to flee their homes by violence, economic privation and climate change to which the United States is a primary contributor.

While the announcement also included a special “humanitarian parole” provision for some asylum seekers from Nicaragua, Haiti and Cuba, the border rights organization Al Otro Lado notes that the eligibility requirements of this parole provision are much more demanding than those operative for Ukrainian migrants. Mostly non-white migrants from these nations entering Mexico or Panama without a visa would be excluded from this so-called “humanitarian” policy, even though, like Ukrainians, their flight away from their homes results from circumstances beyond their control.

Title 42 is zombie public policy. In 2020, against the counsel of the Centers for Disease Control and Prevention, Trump administration lawyers resuscitated the quarantine provision of the 1944 Public Health Service Act. Title 42 allows the Border Patrol to expel asylum seekers from the country in the name of public health. While Biden came into office promising to reform Title 42 and other components of the draconian immigration policy of his predecessor, the law remained in place, denying many asylum seekers the right to cross the U.S.-Mexico border.

In November 2022, a lawsuit brought against Title 42 by a coalition of immigrant rights advocates, including the American Civil Liberties Union (ACLU), the Texas Civil Rights Project and The Refugee and Immigrant Center for Education and Legal Services (RAICES) prevailed in a federal appeals court in Washington, D.C., which struck down the law. Subsequently, Republican attorneys general from 19 states appealed to the Supreme Court, which stayed the federal ruling temporarily, allowing Title 42 to remain in place pending the court’s consideration of the case, currently scheduled for March of this year.

Media coverage of the political conflict over Title 42 regularly features images of organized combat. Framed by colonnades of ribbon wire, Customs and Border Patrol (CBP) agents lean against their mechanized steeds, seemingly bracing for conflict. Across a concrete arroyo, lines of asylum seekers face them, as though preparing for battle.

Xenophobia remains a staple of right-wing outlets like Fox News, which repeatedly deploy the familiar terms of invasion. Although Biden’s recently announced policies represent concessions to the right’s incessant palaver of crisis and demands to close the border, these provisions are unlikely to satisfy this cohort.

Although their rhetoric is less extreme, Democratic governors and mayors also rely on a language of crisis as they demand more resources to contend with an anticipated “flood” of migrant arrivals should Title 42 be struck down. As writer and organizer Harsha Walia cogently argues, there is no “crisis” at any border: The emergency comes from the militarization of borders in face of escalating global displacement.

The rhetoric of crisis at the border mobilizes time-honored tropes of the border as frontier, a place where “America” confronts hostile, racially alien forces bent on its destruction. As historian Greg Grandin points out, such tropes have long justified violence toward Indigenous nations as well as the Mexican citizens whose homelands were appropriated at the conclusion of the Mexican American War in 1848.

In the current framing, heroic CBP agents defend a besieged nation by enforcing restrictive policies like Title 42. To the political right, the wall is never high enough, while border patrol lacks the resources to protect against the proclaimed “migrant onslaught.” Xenophobia and violence at the border shape contemporary U.S. politics. The immigration agenda of the newly elected Republican-majority congress embraces this perspective and may well launch impeachment hearings against Department of Homeland Security (DHS) Secretary Alejandro Mayorkas over his handling of the putative border crisis.

With roots in settler colonialism and Indigenous dispossession, Title 42 also emanates from Cold War public policy. Without losing the narrative of hostile Indians and hordes of Mexicans, Cold War political rhetoric added the slippery, often racialized menace of communists and other “undesirables” bent on infiltrating and destroying the nation.

Like the Nationality Act of 1940, which denied citizenship to foreign born Asian Americans and Latinx, the Public Health Service Act of 1944 contained provisions to regulate immigration. Designed as a bridge between World War II and peacetime, this law allocated federal funding for medical research and hospitals and extended military benefits to health service employees, while sidestepping the pressing question of whether to create a national social insurance program that included health care. Notably, the bill also strengthened the surgeon general’s power to impose interstate and foreign quarantines, mostly out of a concern for the spread of tuberculosis. As historian Natalia Molina explains, this followed a century-long tradition of using medical quarantines to exclude migrants deemed racially undesirable.

The 2022 petition from Republican-led states in favor of maintaining Title 42 is ironic, given that those same state governments uniformly resisted public health measures necessary to stop the spread of the ongoing COVID-19 pandemic. Cynically, the nineteen Republican attorneys general argued that lifting Title 42 would be “an enormous disaster,” effectively exploiting the urgency of curtailing COVID contagion to limit the very presence of migrants. As public health policy has increasingly ignored the ongoing pandemic, Title 42 continues to create death and suffering at the border.

Title 42 uses the false flag of public health to prevent migrants who have compelling reasons to come to the United States from crossing to comparative safety. It is one terrible law in a long history of attempts to circumvent the international refugee regime created by the office of the United Nations High Commissioner for Refugees (UNHCR) after World War II.

This policy, along with the “new” initiatives recently trotted out by Biden, follows a long, bipartisan history of xenophobic public policy, including the Reagan-era “preventive detention” policy that punished first Haitians and then other migrants with imprisonment after they survived their journeys; the militarization of the U.S.-Mexico border under the Clinton, Obama and both Bush administrations; and the dreadful Trump administration “Zero Tolerance” and “Migrant Protection Protocols” that denied asylum seekers their right to cross the U.S.-Mexico border, forcing them to remain in places they had attempted to flee due to housing insecurity, poverty, political violence and climate degradation brought about by U.S. military and corporate adventures in the region.

Far from enhancing public health, Title 42 is a menace to collective wellbeing. By driving migrants back from the border, it renders them vulnerable to kidnapping, trafficking, disease and death. In the United States, it enhances the scourge of xenophobia, seeds racialized political division, creates fear in foreign born communities, and undermines more scientific approaches to public health. It is not healthy for people to have to sleep outside in the cold; nor is it sound public policy to seed fear in foreign-born communities on both sides of the border. As the SARS-Covid19 pandemic illustrates, the world is a closely connected place. Closed borders do not grant protection against disease and death — they create them.

The Biden administration’s plans for immigration policy mobilize the surge and crisis mentality, meeting demands from xenophobic governors like Greg Abbott of Texas to further militarize the U.S.-Mexico border while also entering into further agreements with governments in the Americas to limit migration. Walia quotes border journalist Todd Miller: “Close your eyes and point to any landmass on a world map, and your finger will probably find a country that is building up its borders in some way with Washington’s assistance.”

Early in the Biden administration, Vice President Kamala Harris’s trip to Guatemala signaled support for the repressive Alejandro Giammattei regime there, as long as Guatemalan officials promised to keep migrants at home. Such arrangements, along with the endless expenditures on militarized borders and migration deterrence, undermine collective public health. They draw resources away from needed expenditures on education and infrastructure, create fear in migrant communities, and encourage racial vigilantism at the border and beyond.

On January 2, 2023, would-be arsonists accidentally set themselves on fire while trying to burn down an immigration and naturalization law office in Bakersfield, California. White supremacism and xenophobia represent ongoing risks to public health and safety.

But there are alternatives to the endless crisis, expensive militarization and ongoing enabling of zombie policies.

Since the UNHCR Convention of 1951 articulated the definition and attendant rights of refugees, U.S. immigration policy has focused on the nation’s geopolitical interests rather than the human rights endorsed by the convention. While the United States is a signatory to the subsequent 1967 UNHCR Protocols on Asylum, the rights of asylum seekers have been similarly ignored in favor of strategic alliances, often with regimes that create conditions forcing many to flee.

The UNHCR convention stipulated rights for displaced persons. These rights include: travel documents, family unity, social welfare services, employment, housing, education, and the recognition of diplomas and professional certificates earned abroad. While the 149 signatories of the convention convey few, if any, of these rights to migrants in practice, this document remains a standard for treatment of refugees and asylum seekers. Ensuring family unity, work permits and education for those in dire need of refuge would be vastly cheaper than the costs of building a border wall and paying for the technology and personnel to police it. In 2022 alone, the requested budget of the DHS was $52.2 billion, almost all of which went toward securitization under the crisis framing. Why not invest in collective public health on both sides of the border instead?

In an era of climate change, it is difficult to be certain where the next unnatural disaster will take place. Denizens of many of the states whose governments are most insistent on waging war against migrants could find themselves forced to become climate refugees. (Paging Texas, with its xenophobic governor, extreme weather and compromised power grid. Being white or native born is not a guarantee against having to migrate because of climate change.)

There must be a sea change in U.S policy. Recognizing the rights of migrants is fiscally sound, humane public policy. RAICES, co-plaintiff in the suit against Title 42, states in their organizational mission: “We envision a compassionate society where all people have the right to migrate and human rights are guaranteed.”

Statements like these emerge from the multiracial, international history of immigrant rights advocacy. Throughout the twentieth century, for example, the American Committee for the Protection of the Foreign Born, a multiracial organization comprised of foreign and native-born advocates fought for the rights of migrants. Today, a diverse and vibrant immigrant rights movement recognizes the centrality of undocumented people to communities across the nation and advocates for their rights.

The migrant rights organization Pueblo Sin Fronteras, which has organized multinational caravans to the U.S.-Mexico border, has put demands for migrant justice this way:

We demand of Mexico and the United States:

-That they respect our rights as refugees and our right to dignified work to be able to support our families;

-That they open the borders to us because we are as much citizens as the people of the countries where we are and/or travel;

-That these governments respect our rights under international law, including the right to free expression;

-That the conventions on refugee rights not be empty rhetoric.

“The border is stained red!”

“Because there they kill the working class!”

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