What Biden’s Embrace of Title 42 Means for Migrant Families

YouKeren (a 34-year old migrant from Honduras) noticed an injured man walking down the streets of Nogales, Sonora. He was from Arizona, and it was August. Keren recalls that he had been stabbed and the knife was still in his stomach. He declined her assistance and ordered her to flee. He told her she was in danger.

Keren, a terrified teenager, was unable to stop the terror. Her children and their family had left Honduras to flee for safety and they arrived in Nogales, Mexico in June with the hope of seeking asylum in America. Now, thanks to two Trump-era immigration policies, they—and thousands of others like them—are stranded in Mexico, where they face similar threats to their safety.

The first policy, the Migrant Protection Protocols (MPP)—sometimes known as the “remain in Mexico” policy—was enacted by former President Donald Trump in 2019 and requires all asylum seekers to wait in Mexico while a U.S. judge evaluates their asylum claim, a process that can take years. Trump in 2020 invoked Title 42 (the health measure) which stated that, due to the COVID-19 epidemic, anyone who makes an illegal crossing into the U.S. can be expelled immediately. This includes asylum seekers. And while MPP allows people to file an asylum claim and wait for the answer in Mexico, Title 42 doesn’t allow people to file any sort of claim at all.

People like Keren were expelled from Title 42 because they have the same effects. Many thousands have been sent to Mexico by both policies, instead of seeking refuge in America. Yet in recent litigation, the Biden Administration has chosen to fight to end one policy and uphold the other— a position critics say is hypocritical and contradictory on its face.

The Biden Administration is attempting to end MPP, arguing in part that stopping the policy would help address the flow of migration “while holding true to our nation’s values,” according to court filings. Texas and Missouri sued the Biden administration for trying to terminate the policy. Arguments on the matter will be heard by the U.S. Supreme Court on April 26.

The Biden administration has also vigorously protected Title 42 during litigation brought forward by ACLU, American Civil Liberties Union and other groups that have challenged the policy. The government has argued that the public health concerns of letting migrants into the country due to the continued threat of COVID-19 outweigh the possible harms done to migrants who are returned to crime-ridden Mexican cities like Nogales, Ciudad Juárez, or Tijuana. D.C. Circuit ruled that while DHS could continue expelling families under the policy, they couldn’t send them to countries where they’d face fear of persecution or torture. The Biden Administration hasn’t said if it plans to appeal the ruling to the Supreme Court. The U.S. Centers for Disease Control and Prevention could provide input on the future policy during a review that takes place at the end the month.

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The Biden Administration has “simultaneously acknowledged the extreme humanitarian concerns that are caused by sending people back to Mexico, while also fighting bitterly to hold on to what they view as the most important tool at preventing people from crossing the border, which is Title 42,” says Aaron Reichlin-Melnick, senior policy counsel at the American Immigration Council, which filed a brief supporting the government’s request to end MPP before the Supreme Court. “This shows the whiplash between attempts to restore humanitarian protections at the border and an attempt to manage the border through deterrence.”

The two cases hinge on separate statutory questions—so legally, they don’t contradict. However, they make sense logically according to Ingrid Eagly (Professor of Law at University of California Los Angeles). The government is asking to use its authority to end MPP in part due to its “unjustifiable human costs,” yet it is asking in separate litigation to continue expelling all asylum seekers in the name of preventing the spread of COVID-19. Eagly states that both positions are similar in that the government seeks broad discretion over how it manages the U.S. – Mexico border. “[The Administration] wants to be able to end the Trump-era MPP program if it sees fit,” Eagly says, “but also to continue Title 42 at its own discretion.”

Even a federal judge noticed the inconsistency between the cases as they progressed through the court system. During a January hearing on the ACLU’s lawsuit against Title 42, D.C. Circuit Judge Justin Walker asked the Department of Justice (DOJ) if he should consider “the self-contradiction” between DOJ’s defense of Title 42 and DOJ’s filings before the Supreme Court saying MPP doesn’t align with the Administration’s values. Sharon Swingle, a lawyer representing the government, responded she doesn’t believe there is a contradiction, and that the government does not contest that migrants have “been subject to extremely harrowing conditions in Mexico or elsewhere.” She said that “the government’s goal is to get back to a state of orderly immigration processing for everyone,” but that “currently, in CDC’s view, the public health realities don’t permit that.”

The White House referred TIME to DOJ for comment on the Administration’s positions in these cases. DOJ did not comment.

Continue reading: This Is For My Son’s Life, My Wife’s Life.’ The Migration Journey to the U.S. Continues Despite Complicated Border Policy

As it tries to distinguish itself from Trump Administration, and try to reduce political backlash by Republicans while trying slow down the spread COVID-19, the final outcome in both of these cases may determine how the Administration handles its future immigration policies. In Mexico, thousands are still trapped in unsafe conditions and there is no clear solution.

Keren was confronted by the injured man in Nogales shortly after. Another man, identified as being a mafia member, knocked at the front door of her small house, which she had rented to her family. The man, visibly enraged, accused Keren’s 16-year-old son of having a sexual relationship with the man’s girlfriend. “He warned us that he won’t allow it and that he will look for accountability,” Keren, who TIME is only referring to by her first name because she fears for her safety if she is identified in Nogales, says in Spanish. Keren scrambled for new housing to accommodate her family.

“[Nogales] scares me,” she says. “It was the same in my country, and now I’m here living through the same.”

‘It’s all coming to a head’

Joe Biden entered the White House vowing to end MPP, distancing himself from Donald Trump’s hardline immigration stance and promising a more empathetic approach to border control. But with the COVID-19 pandemic still causing an urgent public health crisis as his presidency began—and Republicans accusing Biden of being weak on immigration policy—inconsistencies quickly emerged in how his Administration dealt with the influx of migrants at the southern border.

On Jan. 20, 2021, Biden’s DHS announced it would no longer enroll anyone in MPP, and the following month began allowing those who had previously been placed in the program to enter the U.S. By May of 2021, more than 10,000 people of the roughly 71,000 enrolled in MPP had been processed into the U.S. “MPP had endemic flaws, imposed unjustifiable human costs, pulled resources and personnel away from other priority efforts, and did not address the root causes of irregular migration,” Department of Homeland Security Secretary Alejandro Mayorkas wrote in an October memo. “MPP not only undercuts the Administration’s ability to implement critically needed and foundational changes to the immigration system, it fails to provide the fair process and humanitarian protections that individuals deserve under the law.”

Yet the Administration continued enforcing Title 42 against adults and families, arguing it was executing the CDC’s order to “to safeguard the American public and the migrants themselves.” (The Biden Administration announced at the start of its term that it would no longer formally expel unaccompanied minors under Title 42.) Tent encampments have formed in Tijuana and Reynosa across the border to San Diego.

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Tamar, a 38 year-old migrant hailing from Honduras tells TIME that she arrived in Tijuana with her daughters in April 2021. She says she hoped to claim asylum in the U.S. because she was being extorted by gang members in Honduras, and to reunite with her husband, who’d migrated to the U.S. on foot and now lives in Florida. According to her, the first time they attempted to cross the border, Tamar and the girls got separated. Tamar, her six-year old daughter, and her younger sister, ran into a bush while her two other daughters (now nine and seven years) fled in the opposite direction. Two older daughters, Tamar and her youngest daughter were taken by border agents. They were processed as unaccompanied minors. After a month they were released back to their father in Florida. Tamar and her youngest daughter, who eventually turned themselves into U.S. Customs and Border Patrol (CBP) and asked to claim asylum, were instead expelled under Title 42 back to Mexico, where they’ve now lived in a shelter for nearly a year, unable to file a claim for asylum.

“To know that my girls are over there and me over here…with me so close to the border,” Tamar, who is identified by her middle name because she fears for her safety and the safety of her family left behind in Honduras, tells TIME in Spanish. “One doesn’t have peace.”

With the incongruent policy positions came disputes from both sides; the Biden Administration had to defend its positions on both policies in court within the first year of Biden’s presidency. “I think if you’re coming new to these issues, you don’t realize just how unprecedented and extreme it is for the U.S. to prevent asylum seekers from either applying for asylum totally—which is Title 42—or forcing them to remain in another country even if they are permitted to apply… which [MPP] does,” says Karen Musalo, professor of international law at the University of California, Hastings. Muslao, who is also director of Center for Gender and Refugee Studies and a plaintiff in Title 42 lawsuit.

Biden Administration began to defend Title 42 in court against the ACLU lawsuit in August 2021. The D.C. Circuit Court handed the Administration a serious blow on March 4, 2022. Circuit Court found that, while the government was allowed to continue the enforcement of the policy it couldn’t return family members to a country in which they were afraid of being tortured or persecuted. The government has not yet announced whether it plans to appeal the ruling, stick with the court’s decision, or end Title 42 entirely. The CDC will review Title 42 renewal on March 30, as it does every 60-days.

The Biden Administration fought to stop MPP from being used in separation lawsuits throughout the same period. Mayorkas officially ended the program on June 1, 2021. Texas and Missouri sued, saying DHS didn’t have the authority to end the program the way it did. Both a district court judge and an appeals court agreed with states. DHS was required to restore MPP. It is expected that the Supreme Court will rule in this matter by summer.

These legal disputes could have a major impact on the fate of thousands upon thousands of migrants still stranded in Mexico. “It’s all coming to a head in these next few weeks, potentially,” says Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project and lead attorney for the Title 42 case.

Continue reading: A Shelter in Juárez Prepares for Another Wave of Migrants as the ‘Remain in Mexico’ Policy Is Reinstated

As these policies remain tied up in court, migrants now living in northern Mexico—either because of Title 42 or MPP—continue to face extraordinary violence. Human Rights First, an advocacy organization and researcher, reports that there have been more than 9,800 cases of assaults, kidnappings, and violent attacks against migrants expelled under Title 42 in the time since the Biden Administration began. TIME has analysed CBP data to find that more than 1.2 Million Title 42 expulsions have been conducted at the U.S./Mexico border since February 2021. The majority of those expelled came from Mexico, El Salvador and Honduras. Since the reinstatement of MPP, more than 1500 individuals have enrolled in it.

Keren from Honduras, who has been stuck in Nogales for the past two years, turned her frustration and fear into advocacy. Keren joined a Nogales demonstration calling for Title 42’s end on March 21. Tijuana saw similar protests, two years after the first invocation of Title 42. “We have hope that we can successfully be heard and get the opportunity to be over there, to get our families out of danger,” Keren says. “There’s a hope, a possibility and a hope, that they’ll receive us.”

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