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Title 42 Was Inhumane and Illegal. So Are Biden’s New Border Policies.

Biden’s decision to utilize and repackage rather than reject Trump’s amped-up deportation apparatus is no surprise.

The number 42 is displayed above a gate on the border wall along the U.S.-Mexico border in El Paso, Texas, on May 10, 2023.

The cruel Trump-era immigration policy known as Title 42 expires today, but human rights defenders have nothing to celebrate. The Biden administration has swiftly replaced the unlawful and restrictive immigration policy with a near-total asylum ban that will turbocharge the deportation of migrants who cross the border from Mexico into the U.S. This is combined with intensified militarization of the border and unprecedented steps to expand enforcement and deterrence measures throughout Latin America, from Guatemala to Colombia.

The Biden administration published the final version of its new asylum ban on May 10, drawing outrage from human rights groups that decried it as a violation of international law. Under the new asylum ban, migrants seeking humanitarian protection will face new restrictions that include a presumption of ineligibility, coupled with a preliminary requirement that they seek asylum in countries of transit prior to their application at the U.S.-Mexico border.

This in effect transfers the burden of humanitarian relief and enforcement from the U.S. to Mexico and other neighbors in the region. These are the same countries from which hundreds of thousands of people have been forced to migrate for their safety and well-being, and whose systems of support and refuge for migrants in transit have already been severely strained.

The Center for Gender and Refugee Studies has warned that Biden’s new policy “will inevitably result in the wrongful deportation of refugees to countries where they face persecution and torture.”

And Eleanor Acer, senior director for refugee protection at Human Rights First, warned:

The use of this new asylum bar in expedited removals will turn protection screening into a sham process to rapidly deport refugees who qualify for asylum under our laws…. The Biden administration’s new bar on asylum is a disgraceful flouting of refugee law that will have global consequences. Instead of encouraging other countries to host refugees, the rule green-lights evasions of refugee law and human rights around the world.

The Biden administration’s decision to utilize and repackage rather than reject Trump’s amped-up deportation apparatus has come as no surprise. From the beginning of Biden’s presidency, there have been fundamental continuities in practice between the Trump and Biden administrations as to border policy, regardless of their significant differences in terms of rhetoric.

The Trump administration’s rhetoric featured overt racism, xenophobia and criminalization of migrants. The Biden administration’s rhetoric regarding immigration and border policy, in contrast, has featured ostensibly humanitarian trappings. But these rhetorical differences obscure the fundamental continuities in policy between the two administrations.

Both have embraced militarization and externalization of the border and the securitization of migration policy as if they were immutable, transcendent imperatives. And both have actively undermined the internationally recognized right to seek asylum, along with a continued reliance on detention, deportation and militarization. More migrants have in fact been expelled, removed or deported under Biden thus far than under Trump.

While the Biden administration does not posit ripping apart migrant families as its explicit policy goal in the way that Trump did, Biden has backed away from administrative compensation or reparation for victims of those family separation policies. His administration has opposed such measures through litigation, and has been actively considering reactivating the detention of migrant families. Similar apparent incongruities flourish throughout the margins of current policy.

Coverage of all of this by mainstream media is fixated meanwhile on the supposed “crisis” or even “invasion” posed by potentially massive “uncontrolled” migration flows at the border. The most extreme forms of this kind of hate speech, such as the “great replacement” theory, have predictably helped trigger a series of instances of potentially genocidal racist and xenophobic violence at play in cases such as El Paso, Buffalo, Atlanta, Pittsburgh, Charleston, and most recently in Brownsville and Allen, Texas. These echo related horrors on a global scale such as Christchurch and Utoya.

The recent deliberate incineration by Mexican security forces of 40 migrants from six countries in an overcrowded detention center in Ciudad Juárez underlines the kinds of terror and persecution of migrants in transit that have become normalized on Mexican territory. This includes the generalized impunity which characterizes the series of migrant massacres (San Fernando, Cadereyta Jiménez, Güémez, Camargo) that preceded it, along with other mass human rights crimes such as Ayotzinapa and Acteal. All of these potentially constitute crimes against humanity with shared responsibility by both the U.S. and Mexico. Most of the victims of these mass crimes have been of Indigenous origin.

This sadly illustrates the combined effects of U.S. coercion and the current Mexican government’s submission to its assigned role as secondary enforcer of the most regressive U.S. immigration and border policies through their neocolonial “externalization” under President Andrés Manuel López Obrador (AMLO), along with even more subordinate states such as Guatemala.

Tragedies such as these capture momentary (usually superficial) attention. But it is mostly silence or distortion that prevails regarding the structural character of the root causes, deeply entrenched in U.S. and Western policies and interventions, which have driven the current exodus of millions of people, amid mounting death tolls en route, from hemispheric contexts such as Mexico, Venezuela, Cuba, Guatemala, Honduras, Nicaragua, Haiti and Colombia, or those of sub-Saharan Africa and the Middle East. This includes the cumulative impact of climate change and its ecocidal implications, driven by the neoliberal, fossil fuel driven “development” paradigms imposed by the Global North, and embraced by extractivist régimes such as AMLO’s.

All of these cases exemplify the “harvest of empire” that has been explored deeply by Juan González in his alternative history of the relationship between U.S. imperialism in Latin America and the Caribbean, and the unbroken chain of processes of forced migration from the region for over 100 years.

Significant convergences between the approaches to these issues by the Biden and Trump administrations also reflect deeper historic commonalities. These go all the way back to the settler-colonial and racially exclusionary origins of U.S. immigration policy, epitomized over 100 years ago by the Chinese Exclusion Act.

They are also reflected in the persistent adherence, under both Republican and Democratic administrations, to varying forms of the doctrine of “prevention through deterrence” that was adopted by the Border Patrol in 1994 as the guiding thread of its strategic vision. This is a cornerstone of the “iron triangle” at the U.S.-Mexico border, and at Mexico’s southern border, that is completed by mass detention and mass deportation, within a context of deeply rooted structural racism. This must be understood within a framework that recognizes migrant rights as a praxis of decolonization, on both sides of the border.

But the Biden administration has taken this framework even further through unprecedented steps of a historic magnitude to extend deterrence by outsourcing it first to Mexican territory, following the groundwork laid by Trump, and now to Guatemala and Colombia through new partnerships to establish “Migrant Processing Centers” defined in terms of “shared responsibility.”

This kind of approach is encouraged by the Global Compact for Migration (GCM) that was adopted in Morocco in December 2018. Mexico was one of the key states that led the tortuous negotiation process, along with The Vatican. The compact includes both an emphasis on international cooperation in support of processes of “safe, orderly, regular” migration and on a distinction between “regular” (documented) and “irregular” (undocumented or “illegal”) migration, which fatally undermines its supposed embrace of human rights principles.

Ironically, the Trump administration (and others of similar inclinations, such as that of Jair Bolsonaro in Brazil) opposed the compact for going too far in its promotion of migrant rights and of migration itself. Both the Biden administration — underlining the GCM’s supposedly “humane” character — and governments as ideologically disparate as those of Mexico and Guatemala have embraced it.

Now the GCM is being deployed rhetorically in support of the Biden administration’s theoretically “humanitarian” — but in practice deeply cruel and abusive — new measures at the U.S.-Mexico border. This is the new horizon for defenders of migrant rights throughout the region and globally that must be navigated. This landscape includes our need to deepen our coordinated community-based, transnational struggles in defense of the right to migrate and not to be forcibly displaced, as well as the rights to refuge, asylum and other forms of humanitarian protection, sanctuary, hospitality and solidarity — without borders, on a global scale.

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