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The Hot Potato Named “Title 42”

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Washington, DC – Below is a column by Maribel Hastings and David Torres from America’s Voice en Español translated to English from Spanish. It ran in several Spanish-language media outlets earlier this week:

The tumultuous 2022, when it comes to immigration matters, is ending as it began: with a debate over the controversial law known as Title 42 that has affected so many lives and at this moment keeps federal authorities and local and state governments along the border—and even beyond—on edge.

The politicization of this health measure implemented by Donald Trump in March 2020, in the midst of the COVID-19 pandemic, has done nothing to resolve not only the U.S. immigration system, which is already broken, but has actually imposed a series of immoral limitations on thousands of lives already fractured in their countries of origin, and who have confronted even worse situations in their long journey north.

The implementation of Title 42 should have ended this Wednesday, December 21, but the Supreme Court temporarily paused the program’s elimination, in favor of 19 Republican governors who asked to the high court to intervene after a lower court declared it to be “arbitrary and capricious,” on top of violating the law due to improper implementation. This measure permits the expedited removal of migrants, even those who come to seek asylum, due to reasons of public health.

Although Title 42 applies to migrants from all over, the reality is that people of color are the most affected. Throughout this year there have been many images and reports about the humanitarian drama that migrants along the border are living. Basically, the xenophobic essence masked in the measure’s public health rationale has focused on people coming from Central America, Africa, and Haiti, according to a 2022 report by Human Rights Watch (HRW) that mentions the expulsion of more than 750,000 human beings in the last year, in addition to more than one million people sent back in prior years.

Republican governors in border states argued that lifting Title 42 would generate a huge crisis along the border. Before the announcement of the program’s elimination, migrants crowded the streets and hotels in border cities, sleeping outside with the hope of seeking asylum once the rule was lifted. But Republican discourse about a “crisis at the border” fails to recognize that the history of the dividing line between the United States of America and Mexico has always been active—in fact, the most active in the world in all senses—and that migration is, in its essence, the reason for being in this part of the world. And, migration will not stop while economic differences on the planet continue to push human beings from their places of origin.

Therefore, although it is about a health measure, the reality is that Trump’s plan was to use it to undermine the asylum process, which has been helped along by the Biden administration’s continuation of the program. The president has been sharply criticized by pro-immigrant and pro-refugee groups, since migrants expelled to Mexico have been the object of robberies and their lives have been put in danger; some have even died at the hands of gangs and drug dealers, who see in each immigrant not a human being, but a potential “commodity” to take advantage of, without concern about the pain inflicted on their fellow man.

It is precisely here, in the question of solidarity and the humanitarian character of the immigration issue, that there is still the risk of flagging attention from those who debate, from their luxurious offices, the future of thousands and thousands of human beings who are just looking for refuge, particularly in this nation.

In fact, the initial order of District Judge Emmet Sullivan in Washington, DC directing the federal government to eliminate Title 42 was the result of a lawsuit filed by the American Civil Liberties Union (ACLU) and others, asserting that the rule puts the lives of migrants in danger and undermines U.S. asylum laws. Emmet agreed with the ACLU.

The Biden administration assures that it is ready to face the program’s cancellation, although Democratic figures like the Mayor of El Paso, Texas, Oscar Leeser, have declared a state of emergency before the anticipated wave of migrants who have already, in fact, crowded the streets and hotels of this border town. Preparations are being made for the imminent end of the program as far away as New York City, while San Luis, Arizona and Denver, Colorado have also declared states of emergency for the same reason.

But as the year ends, it’s impossible to not wonder why, in the richest and most powerful nation on the planet, an increase of migrants at the border—in this case people seeking asylum—cannot be better managed by the federal government. How is it possible that throughout this entire year, we have been witnesses to a situation that has snowballed and left this country—which prides itself on being a human rights defender—so badly prepared? What’s more: how do we imagine the life right now of those who have already been expelled, those people to whom Title 42 has been applied unthinkingly, and who will remain marked in this generation’s memory as one of the most anti-immigrant chapters of this country, even though it was proposed as just a health measure in 1944?

It’s a dubious thing to have people, with children, sleeping on the streets in the middle of the fall/winter with the hope of applying for asylum. Worse still, even if Title 42 is eliminated, the Biden administration is expected to implement other measures that restrict asylum even more. And the immigrant must ask himself, of course, where lies salvation; where is the good and where is the evil; who can he turn to when all is lost?

The fact is, the Biden administration began January 2022 with the hot potato that is Title 42 and is ending the year the same way, without a light at the end of the tunnel not only for refugees, but for other millions who are already here, awaiting their own legalization. Because with Republicans in control of the House of Representatives starting January 3, immigration relief measures will be brightly shining in their absence.

To read the Spanish version of this article click here.

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