Biden's Title 42 Expansion Misses the Point of Asylum

Amid a surge of migrants arriving at the United States’ southern border the Biden administration has announced a slate of new enforcement measures, including a new parole program that would permit thirty thousand Haitians, Cubans, Nicaraguans, and Venezuelans to apply for asylum in the United States per month. But the new measure would also expel any migrants from those countries who attempt to cross the border under the controversial Trump-era policy known as Title 42.

The new measures are meant to decrease the number of migrants at the border; Biden said most are arriving from the four countries.

“My message is this: If you’re trying to leave Cuba, Nicaragua or Haiti … do not, do not just show up at the border,” President Joe Biden said in his January 5 announcement. “Stay where you are and apply legally from there.”

But according to immigrant rights advocates, these new measures miss the point of what asylum is and misunderstand the realities that migrants who are seeking protection face.

“Parole isn’t something you can exchange for asylum because asylum was designed for people who can’t wait to apply for protection from where they are but need to flee and come to the border,” Yael Schacher, an immigration historian and director for the Americas and Europe with Refugees International, tells The Progressive.

"Parole isn't something you can exchange for asylum because asylum was designed for people who can't wait to apply for protection from where they are but need to flee and come to the border."

“You can only apply for asylum at the border or within the United States,” she explains. “And so these parole programs are a lifeline in some senses… [but] for people who are in immediate danger, that's not possible. And asylum was designed again as a way to be able to flee your home country and go to another country, go to the border of another country, and not be returned from there, but be given a chance to seek protection there.”

Cubans, Haitians, Nicaraugans, and Venezuelans have made up the majority of migrants seeking to reach the United States in recent months. Most of them have been forced to flee their homes due to political crises, so applying for parole from abroad is difficult and risky. Many were forced to flee their home countries years prior.

The new measures have led to an outpouring of criticism for the Biden Administration, comparing these policies to the anti-immigrant measures of the Trump Administration.

The Biden administration’s announcement comes after the U.S. Supreme Court voted 5-4 on December 27 to maintain Title 42 to block some migrants’ access to asylum and to rapidly expel them from the country until at least June 2023. The continuation of the measure—a Centers for Disease Control and Prevention policy which proponents argued would slow the spread of COVID-19—led to outcry by immigration activists in the U.S.

“It’s a political decision,” Jenn Budd, a former Customs and Border Protection (CBP) agent turned immigrant rights activist, tells The Progressive. Budd detailed her experiences working for CBP in a 2022 memoir, Against the Wall.

“There's no health reason to have Title 42 [in place]. It’s actually an antiquated response,” she says. “It was put in place to basically not just shutter the asylum system, but to literally blow it up; so it couldn't be easily put back together. And if Trump had won [re-election], they would have just kept it.”

The Supreme Court’s decision to maintain Title 42 was in response to a lawsuit filed by nineteen Republican-controlled States, which challenged a lower court’s decision to lift the measure on December 21.

“We’re at this point where any change in federal policy that can remotely be seen, portrayed, or thought of as lifting restrictions on the border or having a fiscal burden on any states somehow gives the states standing to sue and prevent immigration change,” Schacher says. “From a historical point of view, this is crazy because we elected a new president to change immigration policy, and the courts are essentially saying you cannot change that [policy].”

She adds: “And Congress, unfortunately, is just doing nothing.”

This challenge by Republican-controlled states comes as the controversial measure was declared unnecessary by the Centers for Disease Control and Prevention (CDC) in April 2022. Data from the Customs and Border Protection suggests the actual application of the measure is in decline. The continuation of Title 42 and Biden’s expansion are the latest political whiplash felt by migrants at the border, who have seen U.S. policy repeatedly shift, leaving them in limbo.

“It’s just perpetuating the confusion,” Schacher says.

Since March 2020, migrants, largely from Mexico and Central America, were expelled 2.4 million times under Title 42. Some who managed to make it across the border were then placed on buses and transported across the country in political stunts—including on Christmas Eve 2022, when Texas Governor Greg Abbott sent multiple buses to Vice President Kamala Harris’s house.

Yet Title 42 and other controversial measures such as the Trump Administration’s “Remain in Mexico” policy, have had little effect on discouraging migration.

“It's not really stopping the migration,” Schacher says. “None of this has ever stopped it.”

As the United States has continued to expel migrants, makeshift migrant camps have popped up across Mexico. These measures have also forced migrants into taking more dangerous routes in the hopes of crossing the border.

But migrants continue to arrive at the U.S. border. The U.S. embassies in Guatemala and El Salvador regularly post warnings against migrating on their Twitter accounts, but these campaigns are unlikely to be seen by those most likely to migrate. Many of these messages use problematic images from Customs and Border Protection agents that dehumanize migrants.

“[These are] trophy shots,” Budd says. “When the U.S. Embassy is doing it, what they’re showing you is they’re condoning the violence.”

A culture of racism permeates the Customs and Border Protection agency, Budd explains.

“We are taught that they’re all invaders,” Budd says. “[That migrants] are coming across to take what is ours, and to do harm to our children, and our country. And we are, as the Border Patrol, the last thing defending the United States. And people who love migrants are just a bunch of idiots and don’t know the truth.”

There is the presence of far-right elements within the Border Patrol, and a culture of impunity has spread within the agency. As Budd points out, Brandon Judd, the president of the National Border Patrol Council (the Border Patrol agent’s union) has reproduced and spread the “great replacement” theory—an anti-immigrant conspiracy theory.

“It's all just absolutely completely racist bullshit,” Budd says.

But as immigrant rights groups struggle with how to move forward after the continuation and now expansion of Title 42, Budd raises an important point: the discourse has brought attention to the people seeking asylum who may have otherwise been invisible.

“Before Title 42, before Trump, not too many people were looking at what asylum processes look like when you go through the ports of entry,” Budd explained. “So right now it looks like it’s extremely overwhelmed, but it only looks like that because they have the system closed down. [U.S. citizens] aren’t used to seeing this, and all of a sudden they see all these people.”