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By Miriam Raftery

Photo: Border fence, cc by ND

Update April 23, 2022: A federal judge has temporarily blocked the lifting of Title 42 restrictions.

April 9, 2022 (San Diego) – At the start of the COVID-19 pandemic in March 2020, the Trump administration began expelling migrants without access to asylum hearings under Title 42.  Now, after lifting of most other pandemic mandates, the U.S. Centers for Disease Control director has announced that suspending migrants’ rights is “no longer necessary” after “considering current public health conditions and an increased availability of tools to fight COVID-19, such as highly effective vaccines and therapeutics,” the CDC announced in a statement.

The action comes after Ukrainian and Russian refugees began turning up at the U.S.-Mexico international border, fleeing war in Ukraine and persecution in Russia for those opposed to the Russian invasion. But the policy will apply to all migrants seeking asylum.

Associated Press reports that Title 42 was used to expel over 1.7 million migrants in the past two years.

Title 42 will be lifted starting May 23, after which Border Patrol will “simply go back to processing any encounters across the border the way we always have under Title 8, which is the immigration authority that has always been in place throughout the history of U.S. Customs and Border Protection,” a CBP official told Voice of America.

That means a migrant who crosses the border between points of entry can still be removed without access to an immigration court. But if a migrant presents at the border and claims asylum, they will be interviewed by an asylum officer and if the migrant passes a credible fear screening due to dangers they have fled in their homeland, they will be allowed a hearing in immigration court.  If their claim is found not credible, they can be deported, but if asylum is granted, they can stay in the U.S. 

Ed Sifuentes with the American Civil Liberties Union (ACLU) Foundation of San Diego and Imperial Counties, praised the action. “Under the guise of public health, the policy has unlawfully stripped people fleeing from danger of the right to seek asylum by expelling them without due process.”

Norma Chavez-Peterson, executive director of the group, says Title 42 had a disproportionate impact on Black, brown and LGBTQ people, adding that the federal government has the capacity to roll back the policy “in a safe and efficient manner” by working with community-based service providers in border communities to “insure they have the resources necessary to welcome people with dignity and respect.”

Rep. Juan Vargas, a Democrat who represents San Diego’s border areas, calls the change “a welcome steps” and says, “Title 42 was never about public health and safety – it was implemented to deny due process to people seeking refuge and protection,” Times of San Diego reports.

But Rep. Darrell Issa, a Republican, disagrees.  He called the action a “reckless decision” that he believes would cause a “flood of additional illegal immigrants.” 

Several Republicans in Congress have sought to tie any lifting of Title 42 to first ending the national COVId-19 public health emergency declaration and then notifying Congress and waiting an additional 60 days for any rollback. 

While lifting Title 42 would restore rights of asylum seekers with credible fear claims to have court hearings to potentially be granted asylum, it would also make it riskier for migrants who try to cross the border illegally.

Title 42 lifted legal consequences for migrants crossing between border stations, by simply allowing expulsion without other consequences.  Ironically, with legal channels to seek asylum blocked for many during the past two years, Title 42 has resulted in a 30% increase in repeated border crossings, according to U.S. Customs and Border Patrol data, Voice of America reported.

Congressman Vargas says the Biden administration has a plan ready to manage the border policy changes and says he looks forward to working with federal agencies, local governments and nonprofits “to ensure migrants seeking refuge in our country are given the due process they deserve.”


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