Biden has quietly helmed the most radically anti-asylum policy in more than 70 years


Biden, wearing sunglasses, removes his mask

President Joe Biden is actively defending a radically anti-asylum policy. Anna Moneymaker/Getty Images

  • Biden has maintained and defended a Trump-era policy banning asylum-seekers from entering the US.

  • The ban is said to be a public health measure, but scientists argue it is unnecessary and inhumane.

  • Biden is acting out of political interest, sending people to their deaths for his own political gain.

  • Jack Herrera is an independent reporter writing about immigration, race, and human rights. He is a contributing opinion writer for Insider.

  • This is an opinion column. The thoughts expressed are those of the author.

When President Joe Biden first took office, immigrant advocates across the country told me they felt cautiously optimistic; it was hard to imagine him being worse than his predecessor.

But warning signs appeared early on. While Biden spent his first days in office undoing some parts of former President Donald Trump’s immigration policies, the new president decided to keep one of the most radical immigration bans from Trump’s tenure. That ban is Title 42, an order the Trump administration enacted in the early days of the pandemic. An obscure piece of federal by-law, Title 42 gives the federal government the remarkable power to completely shut US borders in times of crisis. Trump used this new power to make his advisor, Stephen Miller’s, greatest fantasy a reality: He announced a ban on asylum.

For eight months, many people fleeing the danger of death and persecution abroad were “expelled” back to their home countries on deportation flights that came without the due process of asylum court.

Almost a year later, when Biden swept into office, he was expected to quickly undo this ban. Instead, to the horror of immigrant advocates, he’s done the opposite. He’s adopted Title 42 as his own, going as far as to defend it vehemently in court. Armed with a policy that can operate, at its most extreme, as a complete ban on asylum, Biden is today at the helm of the most anti-asylum administration in US history – tied for first place only with his predecessor.

Why no one is talking about Title 42

Few people seem to understand or appreciate Biden’s extreme position on asylum. Few Americans have even heard of Title 42.

In a way, that makes sense. In my years as an immigration reporter, I’ve discovered that the United States-Mexico border only really appears in most Americans’ minds as a set of shocking images. People pay attention when children are ripped out of their parents’ arms, or when Border Patrol fires tear gas at families or charges them on horseback. But the slow, grueling suffering created by policies like Title 42 goes on basically unnoticed. After more than 18 months of Title 42 – which is the most radical anti-asylum policy the US has enacted since World War II – I find that many people don’t know what it is.

A US Border Patrol agent on horseback grabbing a Haitian migrant.

A United States Border Patrol agent on horseback tries to stop a Haitian migrant from entering an encampment on the banks of the Rio Grande in Del Rio, Texas on September 19, 2021. Paul Ratje/Getty Images

There are other reasons Title 42 hasn’t gotten more news. Last year, most of us were overwhelmed by the unending litany of tragedies, big and small, that COVID-19 brought into each of our lives; and news headlines were overwhelmed by the ugliest presidential election in recent memory. This year, both Biden and his Republican critics have tried to minimize references to Title 42, because they don’t fit within the lies both sides are telling about immigration. Republicans are trying to frame Biden as an “open borders” radical. Biden is trying to frame himself as an open-hearted pragmatarian, trying to achieve a “fair, orderly, and humane immigration system.”

Both messages are politically expedient; neither are true.

Here’s what’s actually happening

Since he took office, Biden has summarily expelled tens of thousands of asylum seekers. Even if asylum seekers face torture or death in their home countries, they have been returned, without the chance to plea asylum.

Besides expulsions, Title 42 has led to other kinds of suffering. In March in Tijuana, Mexico, I spoke with parents who had made or were considering the gut-wrenching choice to send their children to cross the border alone, without them. Because a court order blocked Trump and later Biden from summarily expelling asylum seekers who arrived alone as unaccompanied minors, Biden spent the spring accepting children but immediately expelling many families. While children weren’t being torn out of parents’ arms, Title 42 was causing the most desperate and vulnerable families to subject themselves to family separation.

Title 42 is also putting extraordinary strain on American border agents, and is putting asylum seekers in danger. In September, thousands of largely Haitian asylum seekers arrived in Del Rio, Texas at the same time. When I went to Del Rio to investigate, I spoke to many Haitians who had been waiting months in Mexico, waiting for their opportunity to cross. But with Title 42 keeping the border firmly closed, all they could do was wait. Increasingly desperate, many of them sprung suddenly at a rumor that people were being allowed to cross in Del Rio. Even though the rumor was false, the glimmer of hope was enough to send thousands to the Texas border. Most of them were expelled to their home countries within days.

In Del Rio, I saw that Biden has started allowing some families into the country, as well some of the most vulnerable asylum seekers arriving on the border – for instance, people who were pregnant or had disabilities. But even with these exemptions, Title 42 expulsion flights continue.

A man wearing a face mask looks out the window of a white van.

A Haitian migrant seeking asylum looks out of the window of a van in Del Rio, Texas, Sept. 24, 2021. Nick Wagner/Xinhua/Getty Images

Biden’s justification is hollow

The Biden administration has argued that, during a global pandemic, Title 42 is necessary to prevent the spread of COVID-19. But that claim is preposterous, and I suspect the administration knows as much.

From its earliest days, it has been clear that Title 42 has nothing to do with public health. When the Trump White House first pushed the Centers for Disease Control and Prevention to enact Title 42, scientists at the CDC refused, arguing that it was neither necessary nor humane. It wasn’t until then-Vice President Mike Pence pressured the director of the CDC that the agency begrudgingly issued the order. Since then, dozens of scientists and public health experts have public ally decried Title 42’s application, saying it’s neither necessary to prevent the spread of COVID nor in the interest of human well-being.

“Imposing restrictions on asylum seekers and other migrants based on immigration status is discriminatory and has no scientific basis as a public health measure,” a collection of prominent public health experts wrote in an open letter published on January 28.

The hypocrisy and discrimination inherent in the order is clear: Right now, any American can cross the border freely. In the last year, I’ve crossed back and forth from Mexico multiple times. I received no temperature check, no one asked for my vaccination status, and no one asked me if I had COVID-19 symptoms. Americans – including at least one US Senator – are vacationing in Cancun and other resort towns across Mexico, and crossing back over the border freely. If Title 42 was really necessary for health, the border would be closed to Americans, not just asylum seekers – the most vulnerable people in the world.

Haitian migrants use a dam to cross to and from the United States from Mexico, Friday, Sept. 17, 2021, in Del Rio, Texas.

Haitian migrants use a dam to cross to and from the United States from Mexico, Friday, Sept. 17, 2021, in Del Rio, Texas. Eric Gay/AP Photo

Rather, it seems the administration’s commitment to Title 42 comes less from prioritizing public health, and more from maintaining approval ratings. Biden officials, terrified that the “open borders” rhetoric from conservatives will sink Democrats in the midterms, have gone out of their way to appear tough on immigration.

Biden has the power to overturn Title 42 at any moment he chooses. The asylum system, while deeply backlogged and under-resourced, still exists, and the US still has the potential to be a refuge from persecution for countless people. Biden’s decision not to undo the order does not come from an ignorance of the good it could do for human well-being; instead, his commitment to Title 42 comes from cynical political calculation.

I’m sympathetic to the tough position the president is in. Could undoing Title 42 hurt Biden among anti-immigrant voters and see him pilloried in conservative media? Certainly. Would it be tedious and difficult to process thousands of asylum claims, while also maintaining social distance and other necessary health protections? It would be.

However, the reason we as a species have developed the concept of human rights is because these rights are not always politically expedient: If respecting a human right like asylum was always simple and easy for our governments, we would not have needed to sign multiple massive, international treaties and pass several laws through Congress. Asylum isn’t easy or convenient. But it’s an aspect of basic morality. If someone is fleeing death, and we turn them around, we’re responsible for whatever happens to them next.

In many ways, modern asylum in this country was born in response to the most infamous example of this happening in US history: When our country returned Jewish asylum seekers to the horrors of the Holocaust.

Today, amidst countless expulsion flights, we are repeating that history. We are sending people back to their deaths.

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