SAN LUIS, ARIZONA - MAY 23: An immigrant mother holds her one-year-old son, after they were released from a local hospital where her son was treated for dehydration after crossing the border from Mexico, as they wait to be processed by U.S. Border Patrol, on May 23, 2022 in San Luis, Arizona. Title 42, the controversial pandemic-era border policy enacted by former President Trump, which cites COVID-19 as the reason to rapidly expel asylum seekers at the U.S. border, was set to officially expire on May 23rd. A federal judge in Louisiana delivered a ruling May 20th blocking the Biden administration from lifting Title 42. (Photo by Mario Tama/Getty Images)

Three days before the expulsion policy Title 42 was set to come to an end this month, a federal district court judge from Louisiana issued a nationwide injunction ordering the Biden administration not to terminate the order until a lawsuit by 24 states, led by Arizona, Louisiana, and Missouri, is resolved in the courts. Immigration advocates say the decision will further endanger Black and brown asylum-seekers and migrants who have already been disproportionately impacted by the policy.

“We hoped that it would have gotten better when we saw the blatant hypocrisy with how [the Biden administration] was accepting Ukrainian refugees,” said Patrice Lawrence, co-director of UndocuBlack. “We hoped that at least in the interest of optics, he would rescind Title 42 at that time. We’re disappointed that not even that seems to be enough for them to stand firm.”

Title 42, a World War II-era public health law, was invoked in March 2020 by President Donald Trump who enacted it in what Democrats had at the time decried as a harmful measure to seal the border from migrants to prevent the spread of COVID-19. The Centers for Disease Control and Prevention (CDC) have long objected to the order, saying it is not backed by science and would not prevent the spread of the virus. It was scheduled to end on May 23, and the Biden administration has said they intend to appeal the federal judge’s decision to a higher court. According to the administration, “The authority to set public health policy nationally should rest with the Centers for Disease Control, not with a single district court.” 

“The Biden administration needs to choose how they want to proceed and stick to that choice,” Lawrence said. “If their choice is truly that they want to rescind Title 42, I have seen administrations prior and I’ve seen this administration bend itself into a pretzel to get the result that they want. They’re capable of doing it, and they should stick to it because it’s the right thing to do.”

Advocates say the policy exposes migrants to violence in Mexico, deprives them of their right to seek lawful asylum, and forces them to return to the dangerous and unstable conditions they were trying to flee in the first place. According to Kennji Kizuka, Human Rights First’s associate director of research and analysis for refugee protection, there have been multiple reports of kidnappings and threats of asylum-seekers stranded at the Piedras Negras border city in recent weeks due to the continued implementation of Title 42.

“Folks who have to come to our border, folks from Central America, folks from the Caribbean, they’re the ones who are going to suffer the most,” said Juliana Macedo do Nascimento, deputy director of federal advocacy of United We Dream. “They don’t come by choice either. People who are seeking asylum are fleeing their circumstances back home. They should do whatever they feel is the right thing for them to keep themselves and their family safe.”

According to Witness at the Border, there were 191 ICE Air removal flights to Haiti between  September 2021 and April 2022, returning around 19,800 Haitian migrants. Between January 2021 and April 2022, there were 228 ICE Air return flights to Haiti, returning about 22,000 Haitian migrants. That number will only continue to grow now that the policy will continue.

“They are not acting from a place of compassion, especially if you’re Black,” Lawrence said. “We really saw that last year in a gruesome display when we saw the CBP folks on horses seeming to whip [Black] migrants. Those people have not gone away.”

The Department of Homeland Security declined to investigate the incident, referring it to the Customs and Border Patrol Office of Professional Responsibility. In March, it was reported that the officers were cleared legally, but remain under an administrative investigation. In October, UndocuBlack and other immigration organizations filed civil rights complaints over tactics used. 

Since President Joe Biden took office, his administration has continued the illegal policy of denying lawful asylum and turning away the vast majority of migrants at the U.S.-Mexico border. Under the policy, the U.S. has expelled over 1.7  million people at the southern border without due process, with recidivism rates soaring immediately after the policy was enacted. Immigration advocates have long been calling for the end of the racist and xenophobic policy, which disproportionately impacts Black and brown migrants and asylum-seekers. 

The CDC finally announced the termination of Title 42 on April 1, calling for extra time to implement COVID-19 mitigation protocols, including COVID-19 vaccinations for migrants and preparing for the resumption of regular migration under Title 8, which lists an extensive series of reasons why a person could be deported, including having committed a crime within five years of being admitted into the U.S., violating a protective order, and being found in possession of drugs. 

The Biden administration will continue to enforce the CDC’s 2020 Title 42 public health authority pending the appeal. The date for the appeal has not been announced yet.

“If the Biden-Harris administration is truly for us, if they’re compassionate, and trying to correct racism and they’re anti-racist, and they’re trying to come up with unity of the American people, then Title 42 needs to be rescinded,” said Lawrence. “It needs to be backed up with action.”

Alexandra Martinez

Alexandra Martinez is the Senior News Reporter at Prism. She is a Cuban-American writer based in Miami, Florida, with an interest in immigration, the economy, gender justice, and the environment. Her work...