Title 42, Part 2: Questionable Upon Invocation, Certain Harm Upon Expiration

July 25, 2023

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The Trump administration’s invocation of Title 42 was not unprecedented.[1] However, this drastic measure was inconsistent with the Administration’s response to the COVID-19 pandemic generally. While stoking fears of migrants introducing and spreading the virus into the U.S. without evidence to support such claims, the Administration continually and aggressively downplayed the threat of the virus generally, consistently undermining the advice and expertise of health experts and stifling the country’s ability to respond generally.

On the other hand, President Trump consistently spewed xenophobic language and unrelentingly pursued actions to limit all forms of immigration into the United States, especially for the most vulnerable individuals. The Administration implemented a series of policies curtailing asylum, removed certain due process protection for immigrants, and ended temporary immigration protection for hundreds of thousands of people by terminating DACA and TPS, among many others.

The Administration’s dramatically different response to the scientifically proven threat of COVID-19 and the unsupported threat posed by immigrants arriving and living within the U.S. overwhelmingly suggests the Administration invoked Title 42 not to protect Americans from a deadly virus, but rather to accomplish its ulterior motive of enacting anti-immigrant policies, many of which had been enjoined by federal courts. This inconsistency is chronicled below.

Policies Introduced—and Prohibited by Courts— to Limit Access to Asylum Policies and or Comments Downplaying Severity of COVID-19 Pandemic
Migrant Protection Protocols (MPP) or “Remain in Mexico”

The Migrant Protection Protocols, also known as the “Remain in Mexico” policy, was implemented in January 2019 and required certain asylum seekers to wait in Mexico for the duration of their immigration court proceedings. The policy faced legal challenges, and in February 2020, the Ninth Circuit Court of Appeals upheld a district court’s injunction against the policy in the case of Innovation Law Lab v. McAleenan, 951 F.3d 1073, 1078 (9th Cir. 2020). The policy was not allowed to continue during the duration of the Trump Administration; however, the Supreme Court lifted the injunction in March 2021, allowing the policy to continue until it was later formally terminated by the Biden administration in June 2021 and subject to subsequent litigation.

Asylum Ban

The Trump administration issued a rule in July 2019 that sought to categorically deny asylum eligibility to individuals who crossed the southern border between ports of entry. This policy was challenged in court and in July 2020, the Ninth Circuit Court of Appeals, in the case of East Bay Sanctuary Covenant v. Barr, 964 F.3d 832, 838 (9th Cir. 2020) affirmed a district court’s preliminary injunction, effectively blocking the policy. As a result, the asylum ban was not allowed to continue.

Third-Country Transit Ban

In July 2019, the Trump administration issued a rule that barred individuals from seeking asylum in the United States if they had passed through a third country without applying for protection there first. This policy faced legal challenges and in September 2019, the Ninth Circuit Court of Appeals upheld a preliminary injunction against the policy. The Supreme Court later ruled in favor of the administration in a separate case, Barr v. East Bay Sanctuary Covenant, 140 S. Ct. 3 (2019), and allowed the policy to be implemented while litigation continued. However, the policy was later replaced by the Title 42 expulsions due to the COVID-19 pandemic.

Zero Tolerance Policy and Family Separation

The “Zero Tolerance” policy, announced in April 2018, aimed to prosecute all individuals crossing the border unlawfully, including those seeking asylum. As a result, families were separated as parents were criminally prosecuted. This policy faced significant public backlash and legal challenges. In June 2018, a federal judge in the case of Ms. L v. ICE, 302 F. Supp. 3d 1149 (S.D. Cal. 2018), issued a preliminary injunction ordering the administration to reunite separated families. Subsequent court orders and settlements further required the reunification of separated families. The policy was effectively discontinued, and a court-appointed steering committee oversaw the reunification process; this litigation continues today. More than 5,000 children were forcibly removed from their parents, hundreds remain permanently orphaned.

Hydroxychloroquine

Former President Trump frequently touted hydroxychloroquine as a potential treatment for COVID-19, even calling it a “game-changer.” However, scientific studies and health experts raised concerns about the lack of sufficient evidence supporting its effectiveness and potential risks. The FDA revoked the emergency use authorization for hydroxychloroquine in June 2020.

Injecting Disinfectants

In a press briefing in April 2020, President Trump suggested the possibility of injecting disinfectants or using ultraviolet light inside the body as a potential treatment for COVID-19. This statement was widely criticized by medical professionals and experts as dangerous and without scientific basis. Health agencies promptly issued warnings against such practices.

Downplaying the Severity of the Virus

There were instances where the former administration downplayed the severity of the virus. For example, early in the pandemic, there were statements that suggested the virus would disappear quickly or that it was under control, which did not align with scientific projections or the evolving situation.

Mask Usage

There were mixed messages regarding the importance of wearing masks to prevent the spread of COVID-19. Initially, there was resistance to widespread mask usage, with suggestions that masks were not necessary for the general public. However, scientific evidence increasingly supported the effectiveness of masks, leading to revised recommendations from health agencies.

Specifically Undermining Infectious Disease Experts

There were numerous instances where former President Trump made statements that undermined or questioned the expertise and motives of Dr. Anthony Fauci, a leading infectious disease expert and a prominent member of the White House Coronavirus Task Force. Here are a few notable examples, including 1) certain treatment approaches for COVID-19, e.g., the effectiveness of hydroxychloroquine, the use of remdesivir, and the timing of reopening businesses and easing restrictions; 2) President Trump’s July 2020 retweet of a post that criticized Dr. Fauci and other public health experts, downplayed the severity of pandemic, including the statement, “. . . deaths are really down and going down further,” and 3) generally downplaying the severity of the virus to Americans.

The Legacy of Title 42: More Restrictive Asylum Rules and Policies

Despite the dubious motivations for implementing Title 42 and the failure of the threatened doomsday scenario of an unmanageable Southern U.S. Border upon its expiration, the expiration of Title 42 nevertheless led to the introduction of new and more restrictive asylums rules and processes, known as the Circumvention of Lawful Pathways. The new regulation means people fleeing their home countries due to violence and instability, who undertake an uncertain, life-threatening journey to seek refuge in the U.S., will be rendered ineligible for asylum unless they can meet one of a handful of exceptions. Each of these policies, which will be discussed in related, forthcoming blog posts, cause individuals requesting asylum to be generally presumed ineligible unless they or an accompanying family member can show: 1) prior entry through parole; 2) they’ve sought and been denied protection in another country en route to the U.S.; or 3) successful use of a DHS scheduling system, CBP One.

[1] A few examples of when Title 42 provision had been utilized prior to COVID-19 include: 1) HIV/AIDS: In the past, Title 42, Section 265 has been invoked to enforce restrictions on the entry of individuals with HIV/AIDS into the United States. This policy, commonly known as the HIV travel ban, was in effect from 1987 until it was lifted in 2010; 2) SARS (Severe Acute Respiratory Syndrome): During the SARS outbreak in 2003, Title 42, Section 265 was utilized to implement health measures at U.S. ports of entry to prevent the entry and spread of the disease; 3)  Ebola: Title 42, Section 265 was invoked during the Ebola outbreak in 2014-2016. It was used to implement enhanced screening and health measures for individuals entering the United States from countries affected by the Ebola virus; and 4) Zika virus: In 2016, Title 42, Section 265 was invoked to address the Zika virus outbreak. Measures such as enhanced screening and mosquito control efforts were implemented to prevent the spread of the virus.

 

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