On May 20, a federal judge in Louisiana ruled that Title 42, a policy used since the Trump-era to expel millions of asylum seekers at the southern border, must remain in place. In April, the Biden administration had announced a plan to rescind the controversial public health order, which restricts migrants' entry into the US on the grounds that they pose a health risk. But over 20 states filed a lawsuit against the decision.

Title 42 was invoked by former president Donald Trump in March 2020, at the start of the coronavirus pandemic. The provision, laid out in the United States Code, is designed to protect public health and was officially implemented by the Centers for Disease Control and Prevention (CDC) to curb the spread of COVID-19.

But effectively it means that Border Patrol can immediately turn back and expel migrants attempting to cross into the US without legal authorization, denying them the opportunity to request asylum and have their claim heard. 

In the last two years it has been extended multiple times, resulting in a crackdown on unauthorized immigration. It's been used to expel some 1.7 million migrants, according to United States Customs and Border Protection (CBP). Only unaccompanied minors are exempt from the policy.

A political weapon

While human rights organizations had welcomed the Biden administration's plan to end the use of Title 42, it was challenged by Republicans — despite their efforts to roll back COVID-19 precautions and restrictions. In this instance, the Republican Party believes that lifting the public health order would cause chaos on the US border. 

Maureen Meyer is Vice President for Programs in the Washington Office on Latin America (WOLA). "Republicans intend to use the measure as a political weapon in the midterm elections in November, stoking fears among some sections of the population of a massive influx of migrants across the borders," she told DW.

Ana Saiz, director of the Mexican grassroots organization Sin Fronteras, also maintains Republicans are using Title 42 as an excuse for pushbacks and that the policy is essentially xenophobic. The spread of coronavirus cannot be blamed on migrants — "70% of them are vaccinated," she stresses.

International obligations

Saiz also points out that the different treatment of Ukrainian migrants in recent weeks reflects the entrenched racism in US asylum policy.  Ukrainians fleeing the war may be granted exemptions from Title 42 restrictions on a case-by-case basis, and allowed to apply for asylum, while migrants from Central America, Mexico and Haiti are turned away. 

Maureen Meyer agrees this is a double standard. "Haitians are sent back to a country where presidents are assassinated, a country wracked by gang violence and natural disasters," she says. Meanwhile, Ana Saiz stresses that by keeping the Title 42 border policy in place, the US is failing to meet its international obligations, since the fundamental principle of the 1951 Geneva Convention is that persons may not be returned to a country where they face serious threats to their life or freedom.

She is also concerned by the dangers facing migrants expelled by US authorities. Human Rights First reports that during the Biden administration alone, nearly 10,000 people have been kidnapped, assaulted, raped or tortured since being expelled to Mexico under Title 42.

With President Biden's plan now blocked by a federal judge, the debate about the policy will continue. The Department of Justice has appealed the decision in Louisiana, although the White House has said it will comply with the court's order. Washington has also offered to support Mexico in efforts to contain the influx of migrants at the southern border. The Biden administration is hoping the root causes of irregular migration will be tackled at the Summit of the Americas taking place in Los Angeles in early June.

This article was originally written in Spanish.