Why Biden’s Repeal of a Trump-Era Immigration Law Is Pissing Off Advocates

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The upcoming repeal of a Trump-era edict that has effectively barred asylum seekers from crossing the southern border was the first good news in a long time for President Joe Biden’s beleaguered allies in the immigrant-rights movement.

But then the Biden administration announced plans to keep expelling people seeking asylum at the U.S.-Mexico border for nearly two more months, and those good feelings were quickly extinguished.

“While we are relieved that the Centers for Disease Control will not be renewing Title 42, the administration’s plan to phase out the policy is simply not enough,” said Tami Goodlette, director of litigation at RAICES. “The rape, torture, and kidnapping of those expelled under Title 42 is well-documented and rampant, and with the CDC’s announcement, it will continue for two more months. That is unacceptable.”

In March 2020, the U.S. government functionally barred would-be asylees from entering the country under Title 42, a public health order implemented in the early days of the coronavirus pandemic by President Donald Trump that allowed him to shut down the border in the name of stalling the spread of the virus Over the course of the next two years, that order blocked more than 1.7 million people from requesting asylum in the United States, expediting their removal under the aegis of public health.

The Biden administration has kept Title 42 in place for more than a year, despite open skepticism from public health experts that it was doing anything to prevent the spread of the virus. That decision has angered Biden’s allies in migrant communities who saw it as him turning his back on a campaign promise to create a more humane immigration system.

Now, the administration’s insistence that the order continue to be enforced until May 23 has infuriated those who have been pushing the administration to live up to its promises on immigration—and has elicited deep skepticism that politics hasn’t played a role in Title 42 since the day Biden took office.

“There is no reason why the Biden administration cannot immediately restart asylum processing at ports of entry as we have seen them do for countless Ukrainians since mid-March,” said Melissa Crow, director of litigation at the Center for Gender & Refugee Studies and co-counsel in Huisha-Huisha, challenging Title 42 expulsions of families. “The administration has had 14 months to prepare and marshal the resources necessary.”

The Biden administration has carved out multiple exceptions to Title 42, including exempting Ukrainian refugees seeking entry at the U.S.-Mexico border and barring the expedited expulsion of unaccompanied minors under the authority. Even with those allowances, thousands of people seeking asylum in the United States have been forcibly removed with their claims unprocessed, with more on the way.

Those exemptions, immigrant-rights leaders said, prove that the continued enforcement of Title 42 has little to do with public health and everything to do with political backlash.

“Title 42 has never been about protecting public health,” said Jennifer Babaie, the U.S.-Mexico border program director at the International Refugee Assistance Project, who called its implementation “a de facto asylum ban” at the U.S.-Mexico border.

“The response of neighboring countries to people fleeing the war in Ukraine has shown that it is possible to quickly and humanely welcome displaced people in need of safety,” Babaie said, “and the U.S. has an opportunity to model the same principles at its own borders.”

The fury over Title 42’s continued enforcement is the latest chapter in the seemingly endless pushmi-pullyu saga of the Biden administration’s handling of immigration issues . The president campaigned on creating a “just, fair and humane” immigration system, and to rebuilding immigration courts which had been under direct attack from the Trump administration. Biden secured several early victories on immigration, including the creation of a family-reunification task force and the introduction of a vast immigration reform bill on his first day in office to the cessation of a quota system that required immigration judges to clear at least three cases a week or face a penalty.

But the administration’s continued reliance on Title 42—once described as “the rat king of policy shitshows” by an Obama-era immigration official—was widely derided by immigrant-rights advocates and public health experts as being an obvious political ploy to forestall Republican narratives about mass migration at the southern border. The White House has long maintained that Title 42’s continued implementation was a matter of public health, and that it would abide by recommendations from the CDC.

Padding that two-year order with an additional seven weeks of enforcement in the name of border processing, said Sara Ramey, executive director of the Migrant Center for Human Rights, “shows a blatant disregard for our laws and treaty obligations.”

White House press secretary Jen Psaki told reporters after the CDC’s announcement that the delay was the logical way to coordinate the complex interagency process required to get the asylum system up and running again.

“Implementation of their decision requires an interagency process, specifically leadership of the Department of Homeland Security… and it requires the implementation of appropriate COVID-19 mitigation protocols, also scaling up capacity and scaling up, you know, resources needed,” Psaki said in a White House press briefing on Friday. “It was always going to be important to have an implementation period, and the timeline reflects that.”

Republicans did little to disabuse the notion upon hearing the news that Title 42 would soon be scrapped.

“The Border Patrol tell me that if it expires without a plan being put into place to allow them to handle this volume of migrants, they will simply lose control of the border,” said Sen. John Cornyn said at a press conference about the potential end of Title 42 last week.

Some Democrats, too, have said the quiet part out loud, warning that the increase in migrants into the U.S. could become an electoral liability for the president ahead of the midterms—a political reality that the administration has taken increasingly dubious pains to avoid admitting .

“Ending Title 42 prematurely will likely lead to a migrant surge that the administration does not appear to be ready for,” tweeted Sen. Maggie Hassan (D-NH), who is up for re-election in November, adding that she would “keep pushing the administration to strengthen border security.”

The Biden administration’s assertion that it needs additional runway in order to untangle a messy asylum system does have its defenders, however. The backlog of cases already winding their way through the immigration court system reached an all-time high of more than 1.7 million cases, according to a Syracuse University analysis, a caseload that has already strained immigration courts to their limits. Of the roughly 1.7 million people turned back under Title 42, hundreds of thousands are still waiting in Mexico for the chance to seek asylum as allowed under international law.

That influx of new asylum cases, said Benjamin Johnson, executive director of AILA, will require a massive financial investment for immigration judges, case workers, public advocates and funding for humanitarian groups.

“It is imperative that sufficient resources be immediately allocated to the southern border to deliver an orderly and humane process to all individuals who present themselves at ports of entry or are encountered in between,” said Johnson.

Biden has asked for funding to alleviate the backlog, with $4.5 billion over the next 10 years requested in his newest budget proposal for the hiring of more than 100 immigration judges.

But like many of Biden’s other proposed solutions to the brewing migrant crisis at the border, that request for funding seems likely to fall short.

“There is absolutely no justification for giving billions of dollars to detain even more people, especially people and families seeking refuge,” the Defund Hate campaign—a coalition of more than 50 organizations working to cut funding for U.S. Customs and Border Protection—said in a statement. “Rather than prioritizing billions of taxpayer dollars towards detaining people seeking safety or a better life, Congress and the Biden Administration must invest in welcoming immigrants and helping all our communities access the services and support we need.”

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