Title 42 Led to 1.5 Million Deportations. Biden Should’ve Repealed It Earlier.

The Biden administration has finally announced that, come May 23, it will no longer be summarily deporting asylum seekers back across the border into Mexico as part of the U.S.’s response to COVID-19.

This is a momentous reversal of one of the Trump era’s most destructive anti-immigrant policies, coming on the heels of the Biden administration’s announcement nearly three weeks earlier that it was ending the summary-deportation policy for unaccompanied children. But it was a decision that ought to have come 15 months earlier.

For more than two years, asylum seekers attempting to cross the U.S.-Mexico border have been summarily deported under a public health rule known as Title 42, which the Centers for Disease Control and Prevention (CDC) invoked in response to the pandemic. This allowed a bypassing of traditional court processes, and a de facto shutting down of the land border to those hoping to claim asylum after crossing into the U.S.

It was, for Donald Trump’s anti-immigration henchman Stephen Miller, the culmination of years of lobbying to use Title 42 as a catch-all regulation that would allow the administration to essentially shut down the southern border and deny sanctuary to pretty much anybody claiming asylum in the country. After putting the activation of Title 42 on a “wish list” of anti-immigration policies in 2017 shortly after Trump was inaugurated, Miller had, in the intervening years, repeatedly attempted to get the CDC to invoke the rule in response to mumps and flu outbreaks. Knowing that this was politically motivated rather than driven by sound public health principles, the CDC balked.

When COVID hit, Miller saw his opportunity. He lobbied hard for the CDC to lock down the border. Then, when the agency’s top scientists continued to resist, realizing that doing so would have no meaningful impact on the course of the pandemic given the prevalence of community spread within the U.S. itself, Vice President Mike Pence, who had been put in charge of the administration’s pandemic response, ordered its director to invoke Title 42, hurting huge numbers of vulnerable migrants. To his eternal shame, then-CDC Director Robert Redfield complied with this order and mandated that his staff begin implementing it.

The rule was a byword for cruelty in the last 10 months of the Trump administration — on par with the Muslim travel ban; the public charge rule that made it all but impossible for immigrants hoping to gain permanent residency to access any public services; Trump’s determination to build a border wall; and the obsessive efforts to end the Deferred Action for Childhood Arrivals program. Immigrants’ rights advocates hoped that, in the first days of the Biden presidency, the new administration would stop using Title 42 in this way.

Instead, faced with a massive increase in the numbers crossing the southern border every day, and a groundswell of political dissatisfaction regarding its handling of the border “crisis,” the Biden administration found it politically expedient to keep the rule in place. In August of last year, in another ghastly example of politics usurping science at the agency, CDC Director Rachel Walensky inked her signature on an extension of the order.

In the two years since it was first triggered, somewhere in the region of 1.5 million deportations under its mandate have taken place. (Since many border crossers are deported multiple times in a given year, the number of individuals deported under Title 42 is likely far lower than this.)

The results have been morally catastrophic. Last month, Human Rights First released a report detailing that since Title 42 was activated in March 2020, more than 10,000 would-be migrants expelled into Mexico under its guise, had suffered kidnapping, rape, torture, and other violent forms of attack.

In September 2021, many of the country’s top epidemiologists signed a letter to the administration decrying the “scientifically baseless and politically motivated” expulsion policy. That same month, a slew of leading public health experts wrote a similar letter to Walensky, as well as to Department of Health and Human Services Secretary Xavier Beccerra, and Homeland Security Secretary Alejandro Mayorkas. The letter pointed out that a large majority of the countries that had implemented entry restrictions to try to control their COVID outbreaks had also carved out exceptions to let in asylum seekers. The U.S. was, in this regard, a harsh outlier.

The Biden administration, which from the get-go has claimed that its response to the pandemic is strictly science-driven, shut down the criticisms coming its way from leading scientists, and instead doubled down on this Trump-era anti-immigration tool. The administration’s fear was that ending the policy would result in a dash to the border by desperate migrants who finally saw an opportunity to get a toehold in the United States. And so, with polling showing that a growing number of Americans were angry at Biden and the Democrats for their priorities around immigration, and specifically for presiding over a huge increase in the numbers of people trying to cross into the U.S. from Mexico each day, Biden’s team decided to double down in support of Title 42.

This decision to continue implementing Title 42 was politically expedient but morally squalid. Over the past few months, it has attracted increasing criticism from progressives within Congress and among the grassroots, as well as from some officials within the State Department — one of whom, Harold Koh, sent in a scathing resignation letter in October in which he decried the ongoing “illegal” and “inhumane” use of Title 42.

Now, in the spring of 2022, with thousands of desperate would-be asylees (including a growing number of Ukrainians) being turned back daily after trying to cross into the U.S. from Mexico to claim asylum, the Biden administration has finally announced that it is changing course. It’s a long overdue shift back to a more decent treatment of asylum seekers. What a shame it took 15 months, and the war in Ukraine, for the Biden administration to finally locate its moral compass on the issue.