The short answer is yes. The United States government cannot continue to expel asylum seekers on the basis of a public health crisis that is no longer a crisis - not that the policy was ever about public health. Title 42 must end, eventually. However, given the hyper-partisan politics of immigration, human rights obligations and public health are secondary concerns. In the end, shutting the border to asylum seekers is much easier than opening it back up, and clearly the Republicans are ready to pounce should it happen.
All that said, the end of Title 42 may be closer than we thought. Federal courts have issued conflicting rulings over the past week that make the continuation of the policy problematic. According to a Reuters report, “President Joe Biden's administration is leaning toward ending a COVID-era order that has blocked more than a million migrants at the U.S.-Mexico border, according to two U.S. officials familiar with the matter, a major policy shift that would restore the U.S. asylum system but could provoke backlash from Republicans.”
One of the rulings was the result of Ken Paxton, the attorney general of Texas, filing a lawsuit to force the Biden administration to end an exemption for unaccompanied children under Title 42. Put another way, the attorney general of Texas sued the federal government to force the Biden administration to restart the summary expulsion of unaccompanied children under Title 42 as was the norm under Trump.
The second ruling also involves children - but in family groups. The ACLU, joined by Oxfam, the Center for Gender and Refugee Studies and other groups sued the federal government to halt the summary expulsion of families under Title 42. The court issued a mixed ruling.
The court ruled that the administration had the right to implement Title 42, and thus under that policy, did have the authority to expel people without granting them access to asylum proceedings. However, the court also said that the administration could NOT expel people to places where they could face persecution or torture. Which means, people who claimed a credible fear of torture of persecution could not simply be sent back home.
Though the ruling was about family groups, there is nothing in the decision that would limit its application. However, if we are speaking about unaccompanied children, the two rulings conflict with each other. One judge has ordered the administration to end the exemption for children. The other ruling is saying the administration has the authority to deny asylum, but it cannot expel people (including children!) to a situation where they face harm. In essence, requiring a credible fear interview process that is currently denied.
As the administration is weighing what to do, it is important that we nudge them along the road of ending the program.
There are two dates of importance for getting the message out. March 20th will mark two years since Title 42 was first implemented. There are a number of actions being planned around the country and at the border. The Quixote Center is organizing a vigil at the D.C. office of the Centers for Disease Control and Prevention (CDC) on March 21 at 1:00 p.m. If you are in the area, please join us, if not, the event will be live streamed on Facebook.
The second date is April 2nd. This is the next renewal date for Title 42 - and if the administration is going to end it soon, this would be the date to do so. Between now and then, we should be flooding the White House with calls with a simply message: End Title 42 expulsions!!