Application of Title 42 | Trump’s shadow on the US-Mexico border

These images will have struck the imagination: border patrols on horseback, chasing migrants from Haiti, as they tried to cross the Rio Grande at Laredo. Having become the symbol of American border policy, they bear the seal of Trumpian policy, which has made immigration its battle horse and the border its spearhead.

Mathilde Bud
Doctoral candidate in political science at the University of Quebec in Montreal and researcher in residence at the Raoul-Dandurand Chair.

Since March 2020, it takes barely 15 minutes for the American border patrol to return asylum seekers to Mexico who present themselves, after weeks, months, sometimes years of migratory wandering, at a border post, or who are intercepted if they attempt to cross the Mexico-US border.

These expeditious measures are based on the resurrection of a provision of the Public Health Service Act of 1944, Title 42, which allows the federal government to take emergency measures to curb the spread of communicable diseases. In the event of a pandemic, the Centers for Disease Control (CDC) can therefore block the entry of people and goods into American territory, subject to obtaining the approval of the President.

In 2020, for the first time since its creation, an American president – ​​Trump – made use of this legal provision, with the aim of preventing the transmission of COVID-19. Anthony Fauci, chief medical adviser to the President of the United States, had opposed it, but the Republican administration had justified its necessity to avoid outbreaks in immigration detention centers.

Refugee rights violated

Two years after its implementation, US authorities have revealed that they have used Title 42 almost 1.8 million times, in particular to curb the arrival of asylum seekers presenting themselves at the southern border. In agreement with the Mexican authorities, Salvadorans, Guatemalans, Hondurans and Mexicans, like some Haitians, are systematically turned back. Around 130,000 families and children were returned to the Mexican side of the border area. The others are temporarily imprisoned in immigration detention centers (despite the risk of an outbreak) before being deported to their country of origin, notwithstanding the risks of persecution they run there.

In September 2021, despite protests in the United States and internationally, 7,000 Haitians were returned to their country. Only 272 individuals in two years have been removed from the application of Title 42 and have been able to apply for asylum due to an imminent risk of torture in their country of origin. Another worrying aspect is that Customs and Border Protection has been collecting biometric data and contact information from those turned away under Title 42, with no indication of how this data will be used in the future, and whether it will affect the ability individuals concerned to seek asylum in the United States.

By sending asylum seekers back to their country of origin despite the risk of persecution, and by turning others back to Mexico in a border region deemed dangerous – especially for the vulnerable population that asylum seekers are -, the United States is in breach of its international refugee law obligations.

According to the principle of non-refoulement, anyone wishing to apply for asylum should not be sent back to a territory where there is a risk of harm to their life, freedom or persecution. A principle largely flouted since, turned back to Mexico without knowing if it will be possible for them (or when) to present a formal asylum request in the United States, asylum seekers come up against cartels. Researchers have identified no less than 6,300 cases of violence against people turned away in the name of Title 42 in two years. The application of this provision has called into question the international commitments of the United States to people seeking protection, at a time when humanitarian crises and the number of refugees in the world are increasing.

And now ?

After a long year, during which the White House asked for the “patience” of asylum seekers, arguing the need to first restore an efficient and orderly asylum system, it finally complied: the administration took into account the recommendation of the CDC, which considers that the current sanitary conditions and the new means of combating COVID-19 make it possible to put an end to Title 42. This “emergency” measure will therefore be abolished on May 23. For a time at least, as the US president faces multiple opposition both in Congress and in court, with several states suing the Democratic administration in an attempt to maintain the policy. The question is causing a stir in the United States, and it is clear that it mainly contributes to the dramatization of the border.

If this law is shelved, the United States would revert to pre-pandemic practice, based on the Migrant Protection Protocols, which were instituted by the Trump presidency and imposed by the Supreme Court under the Biden administration. According to this program, asylum seekers from most Latin American countries presenting themselves at the southern border must also wait in Mexico for their application to be processed by US authorities and are still exposed to cartel violence – but their asylum application is taken into account and they will be able to plead their case before an immigration judge.

Thus, more than a year after the arrival in power of a new president, the imprint of Donald Trump’s mandate on the American immigration system is far from being erased.

Closer than you think

From March 2020 to November 2021, a similar situation unfolded at the Canada-US border, which is also closed to asylum seekers. They had to wait in the United States until the processes for processing arrivals in Canada were back in operation. The Canadian government reacted in a few weeks, unlike its American counterpart, and implemented exemptions to this exceptional closure for unaccompanied minors or those with family in Canada. Nevertheless, the immigration system has been hit hard by the pandemic, which today leads to additional delays in the processing of asylum applications and the temporary visas associated with them.