The battle over Title 42

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Title 42 is a federal health order that was issued by the Centers for Disease Control and Prevention (CDC) during the Trump administration, which relied upon the coronavirus pandemic as a public health reason to stop people from entering the United States. Under the rule, migrants apprehended at the border can be sent back to their home countries immediately without being given any opportunity to request asylum protections or otherwise to plead special circumstances to justify staying in the U.S. Immigration advocates have criticized the rule as nothing more than an effort to shut down the asylum system. Although President Joe Biden promised that his administration would pursue a more compassionate approach to immigration issues, he kept Title 42 in place.

Now, after two successful federal court challenges to the rule by immigration advocates last month, and mounting pressure from top Democrats in Congress, the Biden administration announced that it would wind down Title 42 by late May. That prompted predictable reactions, with Republicans and some centrist Democrats expressing concern that a lifting of Title 42 will create chaos at the border, increase the number of migrant asylum seekers and otherwise further burden a border control operation that is ill equipped to deal with the likely migrant surge.

This debate has set the stage for a political clash over immigration policy in the run-up to the upcoming mid-term elections. Eleven senators — six Republicans and five Democrats — have introduced legislation to require the administration to develop a detailed plan to deal with the anticipated migrant surge before any change can be made to Title 42. They argue that such advance planning is necessary since even with Title 42 in place, there were more than 1.7 million “encounters” between migrants and authorities at the U.S.-Mexico border in FY 2021 — a 400% increase from FY 2020 — and that FY 2022 “encounters” are projected to be even higher.

All of this comes at a time when the administration is seeking to advance a bill for an additional $10 billion in funding for an expanded U.S. coronavirus response and as we are experiencing an uptick in new COVID cases, fueled by the spread of BA.2 — a subvariant of the omicron variant. The COVID uptick has prompted the CDC to extend the federal transportation mask requirement through May 3 —itself a topic of debate — in order to give the agency time to assess the impact of the increase on those at risk and related health care capacity issues. According to advocates of the Title 42 bill, the same concerns that warrant the maintenance of protective measures and require increased funding nationwide should also inform decisions regarding health concerns, capacity and other issues relating to migrants at the border.

Title 42 presents a good opportunity for compromise. While there can be little argument that a plan for a likely migrant surge is necessary, it is also clear that those legitimately seeking asylum in the U.S. must have an opportunity to do so. We call on leadership to come together in good faith to develop a plan.

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