The future of a Trump-era immigration policy grows less certain as courts rule to ease enforcement

Title 42 was first used by former President Trump to exclude migrants – even those seeking asylum – from the U.S., due to COVID-19 concerns. An appeals court ruling has activists calling on the Biden administration to suspend its continuing use of the rule.

By Jill AmentMarch 10, 2022 10:09 am,

A Trump-era immigration order that allows Border Patrol officers to rapidly expel migrants at the U.S.-Mexico border due to COVID-19 concerns faces an uncertain future. Recent court rulings related to the order have immigrant rights activists putting pressure on the Biden administration to discontinue the implementation of the order. They’re asking how much longer the rule needs to be in place, especially as the pandemic wanes.

Elissa Steglich co-directs and teaches at the Immigration Clinic at the University of Texas at Austin’s School of Law.

An appeals court in Washington, D.C., ruled late last week that the Biden administration – which has kept the order known as Title 42 in place – could not expel families with children to places where they face torture or persecution. Meanwhile, a federal judge in Texas ruled children traveling alone could no longer be exempt from deportation under Title 42. These dueling rulings raise questions among immigration rights activists, who say Title 42 is no longer necessary. Listen to the interview above or read the transcript below.

This transcript has been edited lightly for clarity:

Texas Standard: Tell us about this appeals court decision that took place last Friday. How did it change some of the processes of Title 42?

Elissa Steglich: The challenge was to Title 42, which functioned as a complete exclusion for migrants presenting at the border crossing without documentation. They are mostly asylum seekers at this point. And there was no carve out for protection guaranteed by international law and U.S. law for individuals who would otherwise fear torture or harm in their home countries. And the D.C. Circuit Court basically said: listen, we’re at a very different time now, even though this is a public health-related emergency measure. The court said, and I quote “this is a relic, from an era with no vaccine, scarce testing, few therapeutics and little certainty.”

It’s being reported that immigrant rights activists see this as perhaps heralding the demise of or at least the disillusion in this case of Title 42. How do you interpret it?

I think that’s right. One of the facilities that Title 42 has afforded is very swift processing. Border Patrol does not have to ask any questions of an individual who crosses. They can quickly expel them back to Mexico or to their home countries.

So what the D.C. Circuit Court requires is some screening for individuals who say, “I’m afraid of torture or persecution in my home country or in Mexico where you indicate that you will be sending me.” And those screening procedures can cause delay. There are access to counsel issues that need to be addressed. And so there’s an indication that it may make more sense for the administration to rely on some of the traditional screening policies that are already in place.

Getting back to something that some people had been saying earlier, we were seeing COVID on the wane. Does it still make sense to have this policy in place? I mean, can it be justified and why not move more quickly on elimination of Title 42?

That’s been a question since truly the beginning of the administration. Even when the public health law went into effect, there was reporting that it was at the behest of the Trump administration, rather than coming from a true public health need, despite the urgency that COVID was presenting, and that becomes less so and a greater question. There was a lot of skepticism from the D.C. circuit court as to the health rationale.

How does this intersect with the political realities on this side of the border? I mean, could you go into some detail on that?

What’s interesting is that these politics and policy decisions are getting caught up in how immigration is being perceived. In reality, the Title 42 policy is only applying to point-one percent of all border crossers, lawful and unlawful. And yet it is capturing the imagination in an oversize way of the American public. And so I think it’s leading to political decision making rather than looking at what the law might require or the public health realities and guidance based on that.

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