The Supreme Court Orders Title 42 to Remain in Place—but Biden Can Still Act

The Supreme Court Orders Title 42 to Remain in Place—but Biden Can Still Act

The Supreme Court Orders Title 42 to Remain in Place—but Biden Can Still Act

The president has failed asylum seekers—and jeopardized our commitment to justice—by refusing to implement safe and welcoming processes.  


This has been a painful year for immigrant children and their families. While the world transitioned to a “new pandemic normal” in 2022, families who were blocked from entering the United States at the start of the pandemic remain in the dark about when they might be able to cross the border to seek safety and reunite with loved ones. Their dangerous and seemingly endless wait—in the face of an illegal border closure—has been filled with uncertainty. All the while many members of Congress and media outlets call their arrival a crisis, ignoring that the real crisis is the suffering that Title 42 inflicts on children, adults, and families.

It has been over two years since the Trump administration used a public health law, known as Title 42, to close the southern border to asylum seekers. Following an order from the US Supreme Court yesterday, Title 42 will continue for the foreseeable future unless the Biden administration acts independently to end it. Doctors and scientists have consistently exposed the false premise of this policy: There is no evidence that asylum seekers pose a greater public health threat than any other traveler.

Last month, a federal judge agreed and ordered the Biden administration to end Title 42, but Republican officials from 19 states soon filed a lawsuit, which resulted in the Supreme Court’s decision to block the ending of Title 42. While business travelers and vacationers cross the border every minute of every day, Title 42 will keep preventing asylum seekers from doing the same. Instead, migrants are expelled at our border without any opportunity to request asylum from an immigration court. It’s up to the Biden administration to terminate the use of Title 42 once and for all.

Last month, our organization, the Young Center for Immigrant Children’s Rights, met with asylum seekers in Matamoros in Tamaulipas, Mexico, a border city just south of Brownsville, Tex. An open field that once served as a camp for asylum seekers is now fenced off with barbed wire—inaccessible to families. A side street where families sought refuge in the past has been turned into a security post for Mexican law enforcement.

It was cold and raining. The kind of weather that causes your muscles to clench to preserve heat. Our team brought hats, gloves, sweaters, scarves, and sweatpants to give to people. Many migrants slept in empty parking garages or out in the open street. They’d traveled thousands of miles to seek safety, only to learn that the United States will not honor their legal right to request protection.

While in Matamoros, we saw buses with asylum seekers driving south. The riders had been expelled under Title 42, sent back into Mexico by US officials, and then sent further south by Mexican authorities. As local service providers told us, it would be only a matter of days before families—many of whom would still face dangers in the countries they fled, including government persecution, death threats from street gangs, domestic violence, and labor and sexual trafficking—again attempted to make their way back to the border to seek asylum. The message is clear: Asylum seekers are not welcome or safe in Mexico.

The US government has failed these asylum seekers—and jeopardized our commitment to justice—by keeping these policies in place rather than implementing safe processes.

We are not alone in this assessment. Last month, a US court ruled that Title 42 is a violation of federal law and gave the administration until December 21 to revoke the policy. In response, reporters have congregated at the border, capturing video of families seeking protection and using the language of “crisis.” But these families have been here for nearly three years. Our country has had ample time to implement safe ways to welcome people unlawfully turned away and put in harm’s way.

The Young Center for Immigrant Children’s Rights and our allies have proposed humane, child-centered strategies that would honor people’s right to seek asylum, keep families together, and process people swiftly and safely. First, safe processing does not require militarization and force. Federal agencies could establish noncustodial, nongovernmental shelters along the border that would not rely on Department of Homeland Security (DHS) agents, which the administration has time and again claimed are “overworked.” Programs run by nonprofits and nongovernmental service providers could provide humanitarian assistance to individuals and families encountered and quickly released by the DHS, including basic medical care, psychosocial support, orientation to legal responsibilities and rights, referrals to community-based case management services at destination cities, and facilitation of onward travel.

As importantly, there is no need to cause new trauma to children by taking them from trusted caregivers. By locating trained child protection experts alongside DHS law enforcement officers, the administration can ensure that children arriving with adult relatives can be quickly evaluated, screened for trafficking risks, and processed for joint release. Programs like these decrease the need for detention “beds” for both adults and for children and increase the likelihood that newly arrived asylum seekers will be able to acclimate and begin their legal cases instead of recovering from the added trauma of unnecessary separation at the border.

Additionally, with far less resources invested in walls, drones, or other surveillance mechanisms, we could provide all children and families with legal counsel when they arrive in the US and child advocates when they appear for their immigration court dates.

Finally, the federal government could work in partnership with border communities, NGOs, and local governments by ramping up financial support so that communities on the ground can expand their infrastructure and volunteer capacity. While in Brownsville, our team supported a local organization in putting together travel kits to give to migrants who were preparing to reunite with loved ones. The organization has collaborated with local government to allocate funding toward welcoming migrants and ensure that they are able to get to their destinations safely. Similarly, communities from Chicago to Washington, D.C., to Philadelphia have demonstrated their capacity to welcome, provide temporary support, and facilitate migrants’ connection to attorneys and community-based services. With help from the federal government’s extensive interagency resources, local systems of support like these can be expanded across the country.

For the Biden administration and Congress to throw up their hands and say the only solution to address migration at the border is to expel people to danger or expand detention just to temporarily hold and then deport people without a fair hearing is an egregious attack on due process—and our sense of humanity. The child- and family-centered approaches outlined above provide alternatives that could be implemented quickly. Funds invested in detention and surveillance—which are never appropriate for children—can be redirected to community-based services that support integration and participation in court hearings. We cannot undo the mistakes of the past, but we can change course and work to get back on track.

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