Expulsions at the Southern Border Continue Under Biden
President Biden has not been shy about expressing his dislike for Title 42 since the start of his term. Instituted under former President Trump, Title 42 was invoked for exclusion proceedings whereby immigrants present at the southern border without necessary documents were expelled without being given the chance to apply for an asylum.[1] Under the guise of a public health emergency law, Trump restricted immigrants’ from entering the United States to pursue their asylum claims.[2] The excuse for the program was that if people were allowed to request asylum, they would be detained in congregate centers and the rates of COVID transmission would skyrocket in such centers.[3] Since the start of the COVID-19 pandemic, millions have been expelled and the program remains in place even today.[4]
Before Title 42, when an immigration officer at the border found an arriving noncitizen inadmissible for either lack of proper documents or because they procured their visa fraudulently, the noncitizen was able to get a credible fear interview before being removed.[5] The credible fear interview determines whether one is likely to meet the standard for asylum and if a certain threshold is met, the noncitizen is moved to exclusion proceedings where an asylum claim can be raised.[6] This form of immigration relief based on a fear of persecution is a critical part of the US policy that reflects humanitarian concerns and the tradition of the US being a “safe haven for the oppressed.”[7]
Despite stating “I don’t like Title 42”[8] during a speech at the White House, President Biden has not taken sufficient steps to change the policy. To this day, there have been approximately 2.5 million expulsions of noncitizens from the border.[9] One of the main criticisms of the program is that most people who are expelled under Title 42 attempt to reenter again. Since there are no proceedings, expulsion under Title 42 does not count as a removal for immigration purposes and people are not barred from reentering.[10] The result is chaos and confusion at the border and a blatant disregard for the promises of the Refugee Act of 1980.[11]
Isabelle Bukary is a staff member of Fordham International Law Journal Volume XLVI.
[1] See Azadeh Erfani, Recycling Trump’s Asylum Bans & Expanding Title 42: How Biden’s New Policies Threaten to Undermine Asylum Rights for Generations To Come, Nat’l Immigrant Justice Ctr. (Jan. 9, 2023), https://immigrantjustice.org/staff/blog/recycling-trumps-asylum-bans-expanding-title-42-how-bidens-new-policies-threaten.
[2] See Id.
[3] See Id.
[4] See Nicole Ellis, What is Title 42 and what does it mean for immigration at the southern border? PBS (Jan. 13, 2023), https://www.pbs.org/newshour/nation/what-is-title-42-and-what-does-it-mean-for-immigration-at-the-southern-border.
[5] See 8 U.S.C. §1225.
[6] See Id.
[7]See Office of Refugee Resettlement: History, Admin. of Child. & Fam (Nov. 12, 2021), https://www.acf.hhs.gov/orr/about/history.
[8] See Catherine E. Shoichet, The Biden administration keeps shifting its stance on a controversial policy, CNN (Jan. 5, 2023), https://www.cnn.com/2023/01/05/politics/biden-title-42-analysis-cec/index.html.
[9] See Id.
[10] See Id.
[11] Refugee Act of 1980, Nat’l. Archives Found., https://www.archivesfoundation.org/documents/refugee-act-1980/
This is a student blog post and in no way represents the views of the Fordham International Law Journal.