Title 42 is the policy that finally allowed the Trump administration to shut down the border for Asylum Seekers.
You will know why we as a nation do we acknowledge Asylum, why do we protect refugees, why does it matter, but Title 42 has been in place since March of 2020.
President Trump tried multiple different policies, regulations, and announcements to try and shut down the border for Asylum Seekers, particularly Central American Asylum Seekers, and a lot of it got blocked by the courts, and the public didn’t accept family separations.
Finally, when Covid happened, Trump got what he needed to shut down the border, and even though the pandemic has shifted massively and there are ways to ensure public safety like testing and vaccinating, Title 42 has remained in place and it is a policy that says no Asylum Seekers can come into the United States.
Biden announced yesterday that it will be lifted at the end of May, on May 23rd.
Everybody’s talking about it, and we think people are getting it wrong and they will continue to get it wrong.
What Is Title 42?
Title 42 was created decades ago like in pre-World War 2, and it’s a health and human services provision of the law that allows the executive branch of the Government to shut down the border for public health reasons.
Trump tried to use Title 42 to shut down the border before we even ever knew Covid existed at the beginning of his administration, under the argument that Mumps that immigrants were bringing in, which of course there’s a vaccine for, there’s not an outbreak of Mumps, there are plenty of ways that we can protect ourselves against Mumps.
There was a federal suit about it, and it disallowed Title 42 to protect the American public against the Mumps, it was disallowed by the courts.
Trump moved on to zero tolerance, family separations, migrant protection, and protocols that they were throwing at the wall to see what’s stuck to block Asylum.
Then Covid hit, and then, they returned to Title 42 and they said: Okay, we’re going back to this public safety pretext, we’re going to shut down the border, no Asylum Seekers can get in, everybody gets kicked back to Mexico regardless of where they come from, and we’re keeping America safe from Covid, meanwhile not masking and not vaccinating.
The History Of Asylum & Title 42
In the United States, we haven’t had Asylum forever, this is a nation that is built upon people fleeing either coming because of a dream or fleeing religious persecution.
We are maybe the only nation on the globe that has this history, this identity, and when World War 2 happened we failed to protect refugees who were fleeing the Holocaust, there was Saint Louis, the ship that came with 900 Jewish refugees, and we just turned them away, sent them back to their deaths in Europe.
There was a reckoning after World War 2, a global reckoning on the part of everyone who had failed to protect Jewish refugees, ourselves included.
Defining what a refugee is, it’s someone who has a fear of persecution because of their race, religion, nationality, political opinion, or membership in a particular social group.
That construct is meant to protect people in various situations, it could be a woman who’s a victim of domestic violence in Guatemala, it could be someone from a particular tribe in Somalia, or it could be a victim of female genital mutilation.
It’s lots of people from all over the globe who suffer persecution and their government is unable or unwilling to protect them. They might qualify for Asylum, we’ve had this in our laws since post-world War II.
We’ve always needed to figure out how we are going to process people, not everybody qualifies for Asylum, what do we do?
In 1980 we said, this is the definition of Asylum, Congress passed the law, it’s been codified that was 42 years ago, and in the original definition of Asylum a requirement is that an Asylum Seeker is in the United States when they ask for protection or at our border.
One of the two things you can’t ask for Asylum is when you’re in your home country, there are refugee camps, that’s different, lots of people can’t access that type of case, and so many people who are seeking protection, they’re fleeing something come to our border and they seek Asylum.
Historically and for decades what we’ve done is we’ve put people through a credible fear interview process, where if they arrive at the border, they can come to the bridge, and they can say; I’m afraid of returning to my country, I want to apply for Asylum, and they are temporarily detained.
They meet with an Asylum officer who listens to their story, this is a long interview with a trained Asylum officer who listens to this person and asks them lots of questions about the details of what happened to them, when, where, why, what did they say what were they wearing, how do you know they were with the government, how do you know this, how do you know that, it’s not an interrogation but it’s a very in-depth questioning.
People who don’t qualify for Asylum because they failed their interview, and can appeal one time in front of an immigration judge, if they lose the appeal they get sent home.
For 15 years we’ve done a lot of Asylum work, we help people with their credible fear interviews, prepare for and understand what is important, your dispute with your neighbor is not what’s relevant here, what’s relevant is that the cops came and they all said they were gonna kill you.
We help people decipher what’s important, but the simple answer is we’ve had this process in place, where people come, they apply for Asylum, and we give them a thumbs up or thumbs down, and if they pass the interview they get out of detention and they prepare for their hearing in front of a judge.
They put on testimony, they bring evidence, they’re cross-examined, and they may have an expert.
There’s this whole process in place, and then Trump took office, we had this for decades and decades, we had the credible fear interview process, and it was a flawed system.
No one who worked in the system would argue that it was perfect, some people should have passed their interview that didn’t, some kids were placed in detention while they were awaiting their interview, and children should never be detained.
There were lots of problems with the system but it was a functioning screening process for Asylum Seekers, and then Trump took office and decided that we should not be granting Asylum anymore because he wanted to change who we are.
How Mexico Handled Title 42 & Kidnappings
It’s been a challenge for them because a lot of these people have no resources and they’re homeless, that’s where these encampments have sprouted up along the border between the United States and Mexico.
We visited the one in Matamoros and this was pre-pandemic, it was 2019, and that happened because of other Trump policies but they remain in place.
One of the worst parts about it has been that the cartels have realized that these vulnerable migrants know people in the United States.
Most of these people are coming to unite with a friend or family member, they know someone here, and the cartels know that if they kidnap these people and hold them for ransom, they’ll get lots of money.
It’s now so routine that pretty much every migrant can count on being kidnapped at least once and being held for about a $6,000 ransom for a family of 4, it’s four times six, each person has to pay a ransom, it’s extremely routine, it’s just to be expected.
At least 50 percent of the immigrants who are trying to apply for Asylum in the United States, and are kicked back to Mexico are subject to kidnapping or attempted kidnapping, it’s extremely dangerous as you would imagine, there’s lots of other violence, it’s not people getting kidnapped, then held in a house and everything is rosy, it’s dark and awful, these are children, these are immigrants, these are vulnerable people who have fled something awful already, and it’s not okay that our nation has allowed this to happen to people who are asking for our help.
They need to have a chance to go through the interview and be allowed to demonstrate that they qualify for Asylum, based on decades and decades of laws that we’ve had in place. We put them there because we agreed as a nation that this is part of our duty, as a safe democratic nation that is populated by people from around the globe, that we will protect people who are fleeing persecution, it’s who we are.
What To Expect Once Title 42 Is Over?
We can expect some chaos, a really important message to people who are wondering if they can come now to apply for Asylum is, do not, it’s still really dangerous in Mexico, it’s not as if on May 23rd every Asylum Seeker who wants to apply is going to be put through a credible fear interview.
We’re going to see backlogs, delays, detention, injustice, a mucked up gummed system that’s not ready for the flow, that it’s going to see similar to what we saw last year when Title 42 was lifted for children only.
People probably remember all the news about all the kids who were lost in the system, they were stuck in detention, that was in large part because the system had been turned off for a year, and then all of a sudden tens of thousands of children were seeking protection and our system wasn’t ready for that.
We’re going to see something similar and we think when Title 42 is lifted on the border and we also have new Asylum regulations that they’ve already gone through the notice and comment period they’ve already been finalized and announced, it’s 500-page regulation.
It says that it changes the way that Asylum applicants are processed, it should lead to more efficient processing but it’s going to be a mess, it’s going to be dangerous for people.
The Suffering Of Children Caused By Title 42
Each case has a personal story, and remember as a child crossing borders or having been separated from family, there’s nothing so strong as that.
Part of the reason that people who haven’t lived that experience themselves in their childhood are so drawn into this is that all of us are children or parents, when we start to see this stuff happening to the kids it’s having goosebumps just thinking about these kids that we represented and that we saw in the media.
In many cases these kids were forcibly separated, it wasn’t the family separations where some Border Patrol officers were physically ripping children out of their parent’s arms, that’s a whole other horror, but when Title 42 was lifted for kids, many parents who were in Mexico were faced with having to decide to send their children across the border alone because they’re in so much danger in Mexico.
Will Lifting Title 42 Bring More Immigrants In?
When you turn it off for 2 years and then you turn it back on, you’re talking about desperate people who have fled dangerous conditions in their country, and for many of them this is a life or death opportunity, you’re going to have a two-year backlog of people who weren’t allowed to apply.
That is not an unmanageable surge, it could be an unprecedented surge, but it’s the natural consequence of flawed policy.
What we ought to do is have a regular manageable system where we can assess Asylum eligibility for people quickly and send them home if they don’t qualify, allow them if they do.
How Ukrainians Were Affected By Title 42
The situation in Ukraine has helped highlight the injustice of Title 42 because at the beginning, a few weeks ago, Ukrainian refugees were also being turned away, and they are equally vulnerable in Mexico.
If you can imagine a Ukrainian family and all of what they’ve gone through and what happens when they get stripped of their shoelaces and send back to Laredo to the bus station and face potential kidnapping, it’s just like that for people from other countries too.
Ukrainians shouldn’t be turned away under Title 42.
Maybe this situation is what is going to finally end the policy for everybody overall because it highlights how wrong it is right to turn away a Ukrainian family because of Covid’s safety, does that make sense to you? Then, why would it make sense to turn away a family from Venezuela?
The United States has responded very quickly to the Ukraine crisis as compared to what happened in Afghanistan, for example.
We granted temporary protected status for Ukrainians within 2 weeks of the war starting, and it took over 6 months to grant TPS for people from Afghanistan, then, at the border, it took about maybe a week or less for media reports of Ukrainian families getting rejected at the border under Title 42.
Then, there was a pot, there was a memo that lifted it only as it pertains to Ukrainians but of course, you can’t justify that long term, how are you going to only let in Ukrainians but keep everybody else out under a Covid pretext?
Perhaps that is what made things move quickly on Title 42, cancellation or withdrawal for everybody.
Fundamental Fairness In An Asylum Request
We think about how laws are set, how the Constitution is written, it is an Asylum law to say: Okay, we’re only going to give Asylum to people from Ukraine but we’re not going to give it to people from Afghanistan.
Asylum is a case-by-case individual or family determination, some people in the country who have suffered a crisis will qualify, and other people won’t, maybe other people are the persecutors so we have to dive into individual cases to assess Asylum eligibility.
We don’t just grant Asylum to everybody from a country when something happens, that’s not the way our laws work, that’s not a sustainable policy, therefore we need to have a policy that manages to withstand the test of time and withstand various political situations, crises, and types of persecution that happen around the globe.
We shouldn’t say we’re making a policy about Asylum but only as it pertains to Ukrainians because that’s not going to apply 5 years from now and so what law are we going to have then.
Governor Abbott & Title 42
It’s typical of Abbott’s, he of course gets it wrong, he talks about Biden’s not following the laws of Congress when Title 42 is not an act of Congress, it was an executive decision from former president Trump.
It does political grandstanding in sowing division about these issues, and the claim that this is going to endanger Americans it’s not accurate, it’s not based on reality.
At Lincoln-Goldfinch Law we think that the thing to keep in mind is that most of us can agree that America is a nation of immigrants, that we believe in protecting people around the world who are being persecuted and who are unsafe, and that’s fundamentally who we are as a country.
Figuring out the systems and all that can be a little tricky but fundamentally what matters is that we have rules and policies in place, we keep out the drug traffickers, we care about our neighbors who are suffering and we protect them.
Agreeing on this fundamental truth together, and not allowing Abbott, Paxton or Trump, or Fox News to say confusing stuff, that riles people up and isn’t based in reality.