In recent decades, the United States has added approximately 1 million immigrants every year.  This has happened  in accordance with a number of provisions of immigration law, primarily through the sponsorship of family members who are U.S.  citizens.  However, when COVID-19 escalated in March of 2020, the number of immigration admissions, which had already been slowing greatly during the Trump administration, came to a virtual  stop.

As part of its approach to reduce immigration,  the Trump administration sought to bypass the legal obligation to allow persons seeking asylum to present their case by  utilizing a public health authority known as “Title 42.”  Invoking this provision of the law,  immigration authorities were able to  reject and to promptly remove migrants, principally at the southern border of the country — denying them the right and opportunity  to request asylum and explain their basis for fleeing persecution.  The claim made for blocking the statutory access to petition for asylum was, ostensibly, to limit incidents of COVID-19 increasing in the U.S., even in the absence of such a threat of infection among the people hoping for protection.  Advocates for humane treatment of immigrants have consistently decried this policy, and its blanket implementation, as both an abuse of authority and a misuse of the purpose of Title 42.

Since its imposition was ordered by the Trump administration, border officials have utilized Title 42 to remove migrants in nearly 60% of encounters in the subsequent two years.  This has amounted to  more than 1.7 million immediate expulsions, without consideration of the particular circumstances of the persons petitioning for entry.

With the departure of the Trump officials from power, and as the US response to the COVID-19 pandemic evolved, the immigration administrators of the Biden administration have been considering the means and timetable for ending the Title 42 procedures that were being enforced previously. The movement to change the policy has been amplified by the many immigrant advocacy groups and public health specialists, which have challenged Title 42’s appropriateness and publicly-stated rationale.  These groups have asserted  that the policy did not help mitigate COVID-19’s spread, but had in fact put vulnerable asylum-seekers in jeopardy and had thwarted core precepts of immigration law.

“U.S. law says that any person in the United States or at the border with the United States has a right to seek asylum,” said Olga Byrne, the immigration director at the International Rescue Committee.

“The legal issue at hand [with the use of Title 42] is that there’s nothing in the law that allows the government to expel [migrants] without any due process,” she added.

After a disappointing year for Democrats on immigration reform, removing  the barrier of Title 42 to regular processing of asylum petitioners  could be one of President Biden’s most important accomplishments  in 2022 in the eyes of this constituent group. The policy was proposed to expire on May 23rd, according to the Biden administration, with regular asylum processing to resume in its place.  Leading up to this goal,

in March, the CDC (the government agency with the responsibility for properly applying the measure) discontinued the use of Title 42 for one group of migrants: unaccompanied children. CDC is currently working to end the policy for two further groups of migrants: single adults and families traveling together. Prior to the imposition of Title 42, the Border Patrol dealt with migrants under Title 8, a different provision of the United States Code that deals with border enforcement and treatment of entrants.

But now it appears that the phasing-out of Title 42 will not be happening as soon as planned. U.S. District Judge Robert Summerhays (a Trump appointee) of the U.S. District Court for the Western District of Louisiana has issued an order barring the administration from taking actions to discontinue the  Title 42 policy for 14 days , with a hearing on the case set for May 13.  The additional delay and confusion over the orderly and fair processing of migrants is raising further concern that this might become one more divisive issue affecting votes in the midterm elections in November.

Even when the current Title 42 situation is eventually lifted, there is likely to continue to be an elevated number of immigrants fleeing oppressive conditions who will be presenting themselves at the border.  Government officials are planning, and bracing , for at least a temporary surge of migrants at the border once the automatic exclusion mechanism is ended. It “will likely cause a significant increase in arrivals” at the southwest border, according to a strategic plan released last month by the Department of Homeland Security.

“Whenever Title 42 is lifted, there is likely, almost certainly, to be a surge,” Doris Meissner, who leads the U.S. immigration policy program at the Migration Policy Institute, tells NPR. “It will, no matter what, be perceived by intending migrants, and most importantly by smugglers, as the time to come.”

While the future implementation of the U.S. asylum laws and policies is destined to be complex and challenging, advocacy groups are hoping that the Biden Administration can move beyond this recent legacy of inserting the public health provision of Title 42, and resume  fair and lawful conduct in the treatment of persons requesting protection under the nation’s immigration statutes and treaties.

SAMPAN, published by the nonprofit Asian American Civic Association, is the only bilingual Chinese-English newspaper in New England, acting as a bridge between Asian American community organizations and individuals in the Greater Boston area. It is published biweekly and distributed free-of-charge throughout metro Boston; it is also delivered to as far away as Hawaii.