Title 42 and Border Policy Update

Summary

The Biden Administration ends the federal Public Health Emergency for Covid-19 on Thursday, May 11th, 2023. Among the changes that will sunset on this day is the border policy best known as Title 42. In anticipation, the Biden Administration has announced new border policies that begin as the Public Health Emergency ends. This memo provides a summary of changes in border policy and expectations for impacts to immigrant communities here in New Jersey.

Read the full policy memo here

This issue is still developing. This memo was last updated March 12, 2023.
For questions, contact Policy & Advocacy Manager Erik Cruz Morales: [email protected] 

Background: What Was Title 42?

Title 42 is a law that has its genesis in 1893 when Congress passed a law allowing the President to bar people from coming to the United States if there was a Public Health Emergency in place. This early version of the law was in response to anxieties about Irish immigration and the cholera epidemic, but it was not put into use until 1929, and was used to stop the immigration of Chinese and Filipino migrants. 

It is important to note that both the 1890s and 1920s were, like today, times of mass anti-immigrant sentiment. In the years after transcontinental railroad construction, public opinion had turned against Chinese immigrants who were now moving into cities and establishing businesses of their own. The 1920s was also a period of violent racial tension, famous for “red summers” as Black and immigrant soldiers returned from World War I, and the resurgence of the Klu Klux Klan who were also recruiting in response to new Catholic, Jewish, and Asian immigration patterns. 

That 1893 law was eventually rolled into the Public Health Service Act of 1944, where the specific provision barring entry from certain places during a Public Health Emergency was named Title 42. It was never used until it was enacted by the Trump Administration under the guidance of Stephen Miller, a senior policy advisor whose portfolio did not include public health, but rather focused on immigration policy, restrictions, and rollbacks.

Background: Title 42 under Presidents Trump and Biden

From the beginning of Title 42’s enactment by President Trump, public officials decried the policy as scientifically baseless. Research showed that most cases came from travelers, mainly from Europe, and that Covid-19 rates in the U.S. were among the highest in the world, not Mexico or Canada which were the points of origin targeted by President Trump’s order. CDC public health experts noted “there was no valid public health reason” but nevertheless, the Trump administration used the public health emergency crisis to target immigrants and asylum seekers from the Canadian and Mexico border, not the European travelers who were known to be carrying the virus. DHS has been using the policy to block and expel people facing life-threatening situations in their home country – grabbing headlines periodically, like when border patrol officers were seen chasing asylum seekers on horseback, when a tractor trailer filled with dead asylum seekers and migrants was found locked and abandoned by smugglers, and when a processing facility in Mexico caught fire killing dozens. So far, over 1.7 million people searching for safety have been sent back under the order. Countless others have died as these restrictions have only made the passage and forced returns more deadly.

Using Title 42 as a pretext to stop migrants from seeking protection and safety violates both U.S. and international immigration law under the 1951 Refugee Convention and its 1967 Protocol. Since its enactment, the law has been subject to litigation. Though candidate Biden had been a vocal critic of Title 42 during his campaign, his administration at times took on the role of defending the law once assuming the Presidency. The law made headlines again in April 2022 when Governor Abbott of Texas threatened to bus, fly, and transport asylum seekers from the Southern Border to Democratic-led sanctuary cities and states in the North. He was joined by Governor DeSantis of Florida and Governor Ducey of Arizona, marking the beginning of a summer of political stunts that disrupted the lives of thousands of asylum seekers who were relocated to places like New York, Chicago, Denver, and Democratic-led or -associated places like Martha’s Vineyard and Vice President Kamala Harris’s home in Washington DC, and rumored flights to President Biden’s vacation home in Delaware which had a final destination of Teterboro, New Jersey.

While these political stunts may seem new, the bus and flight tactics recall the similarly sinister strategy of Southern segregationists who used “Reverse Freedom Rides”  to Northern Cities in an attempt to undermine public opinion of the civil rights movement. The end goal of this current spectacle is not to actually offset border operations, but instead, scapegoat people fleeing systematic persecution, violence, or economic and environmental disruption at home and distract from Governors’ own failures to invest in humane social programs in their states. It also serves to further distract and divide Americans about the real issues facing our nation as communities struggle with adequate wages, food, housing, and shelter following the rapid reopening of our economy and the ongoing effects of the Covid-19 pandemic.

Today: Biden’s New Border Policies Continue to Restrict Asylum

The CDC announced that it will end the Public Health Emergency on May 11, effectively putting an end to Title 42. However, the Biden Administration has just finalized a new policy restriction on asylum that it plans to use once Title 42 is no longer active and would ramp up deportations of migrants who cross the U.S.-Mexico border seeking asylum. Under the new rule, migrants who cross the southern border without authorization will be presumed to be ineligible for asylum if they can't prove they first applied for asylum elsewhere during their travels, have made an appointment at a port of entry through a DHS app, or received parole through a limited program. As a result, the new policy will disqualify most non-Mexican migrants who enter the U.S. between ports of entry from asylum. In many ways, this new policy is stricter than Title 42 because migrants expelled under Title 42 did not face immigration or criminal penalties. The regulation is a dramatic shift in asylum policy and has already received a challenged in federal court. 

The rule also represents a significant change in immigration policy by President Biden, a Democrat who campaigned on restoring access to the U.S. asylum system after numerous Trump administration rules made it more difficult for migrants to secure refuge on American soil. This proposed Biden regulation resembles a Trump-era policy struck down in federal court that President Biden decried in 2020. If upheld, the Biden administration's rule will cement a growing bipartisan rejection of the asylum laws Congress enacted in 1980 to conform with international treaties designed to prevent nations from turning away refugees to places where they could be persecuted, as the U.S. did to some Jewish people fleeing Nazi Germany.

Today: Expected Impacts on Communities in New Jersey

It is important to note that the end of Title 42 would mean asylum policy returns to its pre-pandemic normal. The extreme restrictions of Title 42 were the aberration, not the standard. Further, as described above, Biden’s new policy may result in even more people being turned away. 

Even still, we should expect the same political stunts that were hallmarks of summer 2022 to resume. Just last night, former President Trump used a CNN forum to proclaim May 11th as a “Day of Infamy,” falsely and irresponsibly claiming 15 million people would be crossing to “destroy” America. Later today, the Republican-controlled House of Representatives announced its own immigration plan that aims to restrict asylum, militarize the border, authorize broad collection of biometric data and surveillance, increase funding for a border wall, and eliminate programs that allow migrants a chance to stay in the U.S. including Haitian, Venezuelan, and Nicaraguan refugees. These policy proposals are being introduced as Southern Governors again threaten to punish Democratic-led States and cities by transporting asylum seekers to the interior. After a hiatus from activity over the summer, a bus arrived in Philadelphia late yesterday afternoon.

Though New Jersey has yet to receive a publicized bus, plane, or other large scale arrival, our neighboring states have. New Jersey has already been the second or final stop for many families whose first destination may have been New York or Philadelphia. As a result, New Jersey’s community needs and responses have largely been invisible since our state has managed to avoid the media circus of first-destination arrival states. Nevertheless, asylum seekers are coming to New Jersey because of our diverse, deeply networked, and established immigrant communities. It is imperative that community organizations, advocates, and State and local governments come together to galvanize resources and support for asylum seekers, even as the media focus that has galvanized support in other places has hindered our shared ability to garner the material resources needed. Close cooperation, coordination, and trust will be essential to ensure new arrivals are able to seek care, pursue their asylum claims and court appointments, and avoid crises in health, housing, or exploitation. 

Asylum seekers have already demonstrated extreme courage, resilience, and resourcefulness to make their journey to the United States, but harsh federal policies and exclusion from work authorization and public benefits prevent them from being able to be self-sufficient once they arrive in New Jersey. It is not necessarily the need that makes the situation for asylum seekers so dire – it is instead their eligibility exclusion from many social safety net programs due to federal bars on their immigration status. Advocacy coordination between State and local government and community partners will allow New Jersey to elevate the need for changes in federal policy and an increase in funding for government and community partners to respond.

NJAIJ membership spans legal service providers, community- and faith-based institutions, social services providers, grassroots groups, policy organizations, and labor unions. In total, NJAIJ membership represents over 500 thousand immigrants and their families. Due to the size and breadth of our coalition, NJAIJ serves as a thought leader on major social, economic, and racial justice issues, especially at their intersection with the state’s immigrant population. NJAIJ has been at the forefront of major campaigns to advance immigrants’ rights and inclusion, including the fight for status neutral drivers’ licenses, a ban on immigration detention, the establishment of a first-of-its kind direct payment program for families excluded from pandemic aid, expansion of State medicaid to provide healthcare to undocumented children, and more. Coalition members are a regular partner with State, county, and local governments on the implementation of new laws and serve as a clearinghouse of resources and capacity builder for organizations who work with and alongside immigrant communities.

Shortly after Governor Abbott’s first bussing announcement in 2022, NJAIJ began convening member organizations in conversation after a bus from Arizona was set to arrive in New Jersey in April. Though the actual number of those initial arrivals was quite small, our state's number of pass-through and second-stop arrivals has grown. NJAIJ used our role as a coalition convener to coordinate resources, share news, and create an ad hoc referral network in anticipation of future arrivals. We encourage our partners and supporters to use and share resources created by the Office for New Americans and legal directories and Know Your Rights tools in NJAIJ’s Resource Hub. 

Finally, we urge our partners to seize this opportunity to position New Jersey as a national leader and set an example for how fair, welcoming, and inclusive communities can thrive. Past comments from Sanctuary City leaders like D.C. Mayor Bowser or NYC Mayor Adams that frame the issue as a diversion of resources or a fiscal crisis only embolden these political stunts and dangerously advance the extremist rhetoric that migration is “invasive” or part of a white “replacement theory.” These ideas not only further complicate the advocacy for resources and policy change, but more worryingly, they galvanize bad actors and extremist groups like the recent attack in Brownsville Texas and the 2019 mass shooting in El Paso. As New Jersey witnesses our own historic rise in the reporting of hate crimes and bias incidents, we must practice vigilant discipline against narratives that both explicitly sow division between communities or implicitly place blame on vulnerable groups. 

This memo was prepared by New Jersey Alliance for Immigrant Justice (NJAIJ), the state’s largest immigration coalition. Comprising over 50 member organizations, NJAIJ uses the power and strength of our network to fight for policies that empower and protect immigrants. For resources, know your rights materials, and more, please visit www.njimmigrantjustice.org/resources