The Biden administration is fighting a legal battle to end the use of Title 42, a policy that has effectively closed the U.S. Southern Border to asylum-seekers for more than two years. Numerous faith-based organizations that work with immigrants have called on the administration to return to pre-pandemic asylum processing.
But ending the pandemic-linked policy is hardly the only thing faith-based advocates say needs to be done to fix the United States’ dysfunctional immigration system.
In March 2020, then-President Donald Trump’s administration invoked Title 42 of the Public Health Service Act for the first time since the act became law in 1944. The policy allows the Centers for Disease Control and Prevention to bar immigration from countries where a dangerous communicable disease is known to exist. It has been used to allow border officials to immediately expel anyone crossing the border, instead of the normal operations of detaining them and processing their claims for asylum.
Ostensibly, the policy’s aim was to minimize the spread of COVID-19 by limiting the number of people in immigrant detention facilities. And while advocates have had concerns with the policy since it was implemented, “we also were sensitive to the very real state of emergency with COVID-19,” said Matthew Soerens of World Relief, a global evangelical humanitarian organization.
“Our government, of course, needed ... to do whatever was possible to minimize the spread of disease,” Soerens told Sojourners. “But also, our position was we also need to respect our laws that make sure that those fleeing a credible fear of persecution are protected. And somehow we need to figure out a way to do both.”
The policy remained in place through the rest of the Trump administration despite immigrant advocates’ objections. President Joe Biden promised to end the use of Title 42 during the 2020 campaign, but his administration kept it active even as it relaxed or entirely lifted other pandemic-related restrictions.
“There has been some frustration that Title 42 even lasted this long,” Hannah Orozco, policy and advocacy manager with Bethany Christian Services, told Sojourners. The global social services organization worked with more than 30,000 immigrants in the United States last year, according to Liz van Zyl, BCS’s vice president of government affairs.
The CDC announced on April 1 that it would end the policy effective May 23. World Relief welcomed the news, as did other faith-based organizations including Lutheran Immigration and Refugee Service and The Episcopal Church.
However, several states immediately sued to keep Title 42 in place. A federal judge heard arguments in the case Friday, May 13. NPR reported that U.S. District Judge Robert Summerhays did not issue a ruling on Friday, but said the states are likely to win their case, which would keep Title 42 in place at least for now.
Making the case for Title 42’s end — and making it happen
Orozco said BCS has worked with other advocates and organizations to get members of Congress on board with ending the use of Title 42.
Both BCS and World Relief are among the leader organizations at Evangelical Immigration Table, which advocates for bipartisan immigration solutions that respect people’s dignity and establish paths to legal status for immigrants without it. The two nonprofits are also members of the Alliance for a New Immigration Consensus, a coalition pushing for permanent legal protections for migrant workers, recipients of Temporary Protected Status, and those protected under the Deferred Action for Childhood Arrivals program; plus “modernized, targeted” security and improved infrastructure at border crossings.
Orozco said that “some of the loudest opposition” to Title 42 has come from healthcare professionals and physicians. They argue the policy “is actually exacerbating this other public health crisis” surrounding the safety of asylum-seekers, Orozco said.
“That conversation with different folks in Congress has been well understood, frankly, and well-received,” Orozco said.
She said, however, that it was one thing to declare an end to the use of Title 42, and a whole other thing to bring about that end.
Supporters of continuing Title 42 have cited concerns that border offices could be overwhelmed by the number of migrants seeking to enter. But officials and advocates “have years of data to understand the trends of people entering across the border,” Orozco said. She added that government agencies and nonprofits have developed plans based on that data, so they’ll be ready for the end of Title 42.
While Orozco expects more migrants at first because the border has been closed for so long, that initial level isn’t likely to be sustained, she said, since migration usually peaks in the spring — well before the use of Title 42 might end.
“It’s likely that we’ll level off,” she said, “because Title 42 actually exempted a lot of asylum-seekers from any kind of sanctions or penalties of crossing the border multiple times.” Pew Research found that about a quarter of migrants that border officials encountered during the pandemic had crossed before, up from 7 percent before the pandemic.
Building coalitions for further action
But BCS, World Relief and other agencies say ending Title 42 alone won’t fix the nation’s immigration system. BCS is advocating for social workers — not border patrol officers — to interview children at the border, according to van Zyl. That, she said, would help protect asylum-seeking kids from further traumatization or unnecessary separation from family members.
While a number of policies could be changed, advocates also argue that the whole system needs an overhaul to work effectively.
Orozco said advocates are brainstorming how to remedy harms linked to Title 42. Human Rights First, an advocacy organization, found more than 9,000 reports of kidnapping, torture, rape, and other violence committed against immigrants kept out of the country by Title 42.
“We’re acutely aware about the harm that has been done,” Orozco said, but don’t yet have specific policy recommendations for repairing that harm.
The Episcopal Church, which recently joined the Alliance for a New Immigration Consensus, has likewise pushed for reforms beyond ending Title 42. One measure it supports is transferring backlogged asylum cases from immigration courts to U.S. Citizenship and Immigration Services, so they don’t drag on for years.
“The system that we had before — using Title 8 to process migrants — while we want to restore that, we also want to improve upon that as well,” Lindsey Warburton, a policy advisor in The Episcopal Church’s Office of Government Relations, told Sojourners.
The Episcopal Church passed resolutions supporting immigration reform as far back as 1985. Its position is that comprehensive reform is needed to ensure all aspects “uphold humane, compassionate, and smart policy across the board,” Warburton said.
As the church advocates on immigration issues, “we try to have a dual focus, both on urgent humanitarian issues like Title 42, but also trying to have a bigger picture goal in mind,” Warburton said. “Why are these things happening and how can we address them?”
Soerens, with World Relief, said he wants to see Congress establish a permanent legal status available to DACA recipients. The program could end within the next year due to court challenges, he said, emphasizing the urgency of a permanent solution.
The nation’s agricultural sector also needs Congress to offer legal status to migrant farmworkers, Soerens said, so producers can ensure they have a sufficient workforce and keep food costs manageable.
Soerens said he sees “incredible bipartisan support” for pairing border security measures with Congressional action on DACA and legal status for migrant farmworkers.
“It is not nearly the partisan issue that some people think immigration would be,” he said.
According to NPR, Summerhays said he would issue his ruling before Title 42 is set to expire on May 23. Biden administration officials could appeal his decision if it goes against them.