Title 42 is over. Immigration policy is still broken.

Migrants at US-Mexico border after Title 42 ends
Christian Torres Chavez/Anadolu Agency via Getty Images

Politicians in Florida, Texas, and New York City are trying to push migrants out of their jurisdictions.

Migrants attempting to enter the US from Latin America and the Caribbean, as well as Africa and the Middle East face new barriers even after the end of the US’s Title 42 policy. In addition to increased restrictions under the Biden administration’s new immigration policies, politicians including Florida Gov. Ron DeSantis and New York City Mayor Eric Adams are trying to keep migrants from settling in their constituencies.

Title 42, the policy implemented under the Trump administration during the height of the Covid-19 crisis, allowed the government to expel migrants from the country without giving them the opportunity to seek asylum in the US, ostensibly to help stop the spread of Covid-19. That authority expired May 11, and Congress has failed to pass meaningful immigration reform despite concerns that the end of Title 42 would overwhelm immigration resources at the southern border.

Absent congressional action, previous immigration policy comes back into play — likely with tighter restrictions on seeking asylum and additional patchwork efforts to control the number of migrants at different points within Latin America. But state and local politicians are taking matters into their own hands, with Florida Gov. Ron Desantis saying at an event in Iowa Saturday that he would shut the border down and designate new funding to move migrants in Florida elsewhere in the country.

DeSantis and Gov. Greg Abbott of Texas have dedicated funding to moving migrants out of their states before, to liberal enclaves like Martha’s Vineyard, Chicago, and New York City. But New York City Mayor Adams, a Democrat, is proposing similarly harsh measures to manage the migrants in his city — by either moving them to the suburbs north of the city, or housing them in an abandoned prison.

Title 42 is over. Now what?

Title 42, the public health order that expired Thursday, was originally conceived under the 1944 Public Health Policy Act, making it a public health rule — not immigration policy. Though the rule was supposedly enacted to keep outside cases of Covid-19 from entering the country, there were more political and craven reasons for putting it in place; as Vox’s Nicole Narea wrote last May:

But public health officials weren’t the ones pushing the policy; the effort was led by Stephen Miller, a former senior adviser to Trump and the chief architect of his immigration policy, which focused on reducing overall immigration levels to the US, at times by deliberately cruel means. Even before the pandemic, Miller had been looking for opportunities to use Title 42 to expel migrants, including when there was a mumps outbreak in immigration detention and flu spread in Border Patrol stations in 2019.

Biden could have used an executive order to remove the Title 42 protections when he entered office in 2021, but failed to do so. The rule was set to expire multiple times, but a many anti-immigration proponents wanted Title 42 codified and a more permanent piece of immigration law.

Now that the Title 42 protection has officially expired, immigration law reverts back to Title 8, under which people with credible fear of returning to their home countries can apply for asylum. Though Title 42 didn’t completely bar people from seeking asylum, it greatly reduced their opportunity to do so. Title 8 opens that opportunity to many more people — but as Reuters reports, many of those who seek asylum won’t be approved.

The Biden administration is likely to roll out regulations demanding that people crossing the border to seek asylum have already applied for refuge in a third country before seeking asylum in the US, Eric Welsh, a partner at Reeves Immigration Law Group, told Vox.

“Under Title 8 there is the right to make an assessment of credible fear for an individual who claims a fear of returning to their own country when they come to the United States,” Welsh said. “What Biden is probably going to do, and it seems almost inevitable, is to put into place a policy that Trump put into place before Title 42 [and] before the pandemic that required asylum-seekers to seek asylum in Mexico if they were coming across the southern border before entering the United States.”

Though it would apply to all migrants, Welsh explained, “in essence it’s meant to target those travelers from the Northern Triangle — from Honduras, El Salvador, Guatemala — who are coming through Mexico and essentially require them to seek asylum in Mexico.”

Despite the high stakes for immigrants, the weaponization of their status, and the lack of clarity and certainty regarding immigration policy, Congress has yet to pass immigration policy that contends with the current situation. The Republican-majority House of Representatives on Thursday passed an immigration bill that would restart construction on the border wall started under Trump and place serious restrictions on the ability to claim asylum — as well as allow migrant children to be detained for months away from their parents, CQ Roll Call reported Thursday. That bill is unlikely to pass the Senate, but could start sincere negotiations on border policy.

Politicians are still pulling immigration stunts

As the end of Title 42 loomed, both Democrats and Republicans have warned about the havoc that increased migration will cause in their cities and states. When the rule was set to expire back in December, California Gov. Gavin Newsom, a Democrat, warned in an interview that the influx would “break” his state’s immigration processing system and that California couldn’t fund the services provided in “a post-42 world,” as Vox reported at the time.

But other politicians like DeSantis and Abbott have been pulling political stunts like sending busloads or planeloads of migrants to liberal cities, or even to Vice President Kamala Harris’s house, to score political points — sometimes at taxpayers’ expense.

Back in September, DeSantis sent two chartered planes full of people, mostly from Venezuela, to the wealthy, liberal coastal enclave of Martha’s Vineyard, Massachusetts. Though the community rallied to help feed, house, and provide legal services to the new arrivals, there was no clear effort to coordinate with the community before the migrants arrived. Vox reached out to DeSantis’ office for details about the new funding for migrant transport, but did not hear back before press time.

Texas Gov. Abbott again sent a busloads of migrants to the Naval Observatory, the vice president’s residence, this week — approximately 70 in total, according to Politico. Abbott has also instituted Operation Lone Star, deploying the newly-created Texas Tactical Border Force and Texas National Guard to the border to apprehend migrants and prevent them from entering the country.

Now Adams, the Democratic mayor of New York City, is also attempting to remove migrants from his constituency, proposing to send some of the approximately 65,000 who have arrived over the past year to suburbs north of the city — or house them in a former prison. Rockland County, one of the proposed shelter locations for migrants, has been granted a restraining order against the Adams administration.

According to Politico, Adams told Newburgh City Supervisor Gil Piaquadio, who proposed housing migrants at the prison and in vacant housing at SUNY New Paltz, that, “Nothing is off the table. If anyone has alternative locations, we’re open to listening. We’re not taking anything off the table at all.”

But the legality of these efforts to move migrants is questionable, Welsh told Vox, especially if they’re not clear on where they’re going or why. Though people in detention — including the incarcerated and those held at migrant detention facilities — can be forcibly relocated, the circumstances under which migrants are being moved by politicians is somewhat murkier.

“There is no rule that controls movement within the United States for somebody who is not incarcerated,” Welsh said — theoretically, migrants have the right to live anywhere they want in the US. And Camille Mackler, an attorney with Immigrant ARC, told Vox in a September interview, people aren’t precisely being forced to board buses or planes, even though they may not understand what awaits them at their destination.

“From what we’re hearing, they’re choosing to get on the bus,” Mackler said at the time. “Whether they understand that they have other options, that’s one of the questions that we’ve been wondering. It depends on the individual as much as anything else, but they’re not getting rounded up by law enforcement on the street and put onto transport.”

The ability of politicians like DeSantis, Abbott, and Adams to relocate people really has to do with the fact that migrants “have so little right,” Welsh said. “Without legal status, the federal government has plenary power, so they can make any rules they want about who can come in if they’re not a citizen of the United States. So you’ve got the theory of diminished rights, even though you’ve got a human being who’s in the country and should be protected by the Constitution regardless of their status.”

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