Title 42: Policy and The Southern Border
RadioEd is a biweekly podcast created by the DU Newsroom that taps into the University of Denver’s deep pool of bright brains to explore new takes on today’s top stories. See below for a transcript of this episode.
The season finale of RadioEd is finally here! This week, Matt chats with Rebecca Galemba, an associate professor at the Joseph Korbel School of International Studies, who specializes the intersections of globalization, illicit markets, migration, security, and labor in Mexico, Central America, and the United States about what Title 42 is and what are its implications, both to immigrants who seek to live in the United States and as a political mechanism.
Matt and Rebecca also talk about how Title 42 changed from Trump’s administration to Biden’s, and how the government has treated immigrants throughout the years, with policies such as Title 8, and what that could mean to future immigrants seeking asylum in the United States. Galemba also tackles the hard topic of the Externalization of Borders the United States and other countries sometimes resort to, which, according to her, can be seen as neglecting their responsibility to take in asylum seekers.
Rebecca Galemba, Ph.D., is an anthropologist who studies the intersections of globalization, illicit markets, migration, security, and labor in Mexico, Central America, and the U.S.
She teaches graduate and undergraduate courses on Qualitative Research Methodologies, Cultures of Development, Migration, and Illicit Markets. Through research, teaching, and community-engaged work, she draws on interdisciplinary approaches to enhance the public good and contribute to studies of social inequality in Latin America and the US. She is professionally affiliated with the American Anthropological Association, the Latin American Studies Association, the International Studies Association, the Guatemala Scholars Network, the Society for Applied Anthropology, and the Society for Economic Anthropology.
Laboring for Justice: The Fight Against Wage Theft in an American City: https://www.amazon.com/Laboring-Justice-Fight-Against-American/dp/1503635201
Center for Immigration Policy and Research: https://cipr.du.edu/
The DU Just Wages Project: https://dujustwagesproject.wordpress.com/
Migrants Deported to Mexico Face Criminals and Predatory Officials: https://www.nytimes.com/2023/05/12/world/americas/migrants-deported-us-mexico.html
US authorities ‘seeing large numbers of migrants at border’ before Title 42 expiration – as it happened: https://www.theguardian.com/world/live/2023/may/11/title-42-expire-republican-immigration-biden-trump-town-hall-politics-live-updates
‘The border is not open’: US immediately replaces Title 42 with strict new rules: https://www.theguardian.com/us-news/2023/may/12/us-mexico-border-biden-new-immigration-rules-restrictions
What is Title 42, why is it ending and what’s happening now at the border: https://www.cnn.com/2023/05/09/politics/title-42-ending-whats-next-explainer-cec/index.html
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We're your hosts, Emma Atkinson-
And Matt Meyer.
What is Title 42?
Over the past few weeks, you’ve likely seen the law referenced in headlines across various news sources. Depending on the journalistic outlet in question, the phrasing and context might be different. It’s clearly associated with immigration, but there’s a huge amount of mis- and disinformation.
On today’s RadioEd season finale, we’ll untangle some of the knotted narratives surrounding the 1944 public health law with the help of Rebecca Galemba, associate professor at the Josef Korbel School of International Studies. Galemba researches the intersections of globalization, illicit markets, migration, security and labor in Mexico, Central America and the United States.
Simply put, Title 42 curbed immigration efforts into the U.S. in the name of protecting public health. Its technical title is an “Emergency Health Authority,” and it was used heavily during World War II to turn away immigrants and asylum-seekers. Title 42 was dusted off by the Trump Administration during the coronavirus pandemic. That administration applied it almost exclusively to the U.S.’s southern border.
When Joe Biden was elected president, he kept the mandate in place, but worked to remove it during 2022. Republican opponents sued and courts upheld their challenge, but Title 42’s application ended when Biden declared that COVID-19 was no longer a national emergency.
Usually, asylum-seekers are allowed to stay in the United States while their case is being reviewed. Under Title 42, they can be expelled immediately, sometimes directly into dangerous situations or with criminal charges.
I’ll let Galemba take it from there:
Title 42 is actually a pretty old public health order from 1944. A really arcane section of U.S. Code on public health and welfare, which was used to basically expel almost all, with very few exceptions, migrants arriving at the U.S.-Mexico border, at U.S. borders, starting in the spring of 2020, ostensibly to combat the pandemic. But evidence shows this was largely used in order to implement particular immigration policies and limit access to asylum.
As you said, Title 42 has largely been used as a mechanism to turn away immigrants and folks seeking asylum. When did it become kind of a political mechanism and shift away from the healthcare aspects?
I would argue it's always been a political mechanism as an immigration enforcement tool. Even public health experts were coming out pretty early, even the CDC later on, of saying this wasn't really backed by science or warranted. Especially, this became more obvious once we had appropriate measures in place to screen people, quarantine, vaccination. Meanwhile, while this restriction is in place, there was still traffic going across the border, of businesses, of people who straddled their lives across the border, of commerce that really outstripped what the threat was supposed to be from migrants crossing the border.
It's interesting because Biden campaigned on the promise to end this policy, largely responding to a lot of outcry, court cases, that this was in violation of not only international obligations under the Refugee Convention, but also our own domestic laws on immigration. It's interesting to see, despite his early attempts to end it, he actually ended up doubling down on it and expanding the populations that were subject to it before it just ended a couple of days ago.
This is perfect because you segued just right into my next question. Because we talked about Trump a little bit and it's really easy to say Trump was a problem, his administration was a problem for immigration, but that's not to say that Biden's done any better. So I guess with his answer to this expiration, what are some of the issues with his administration's policies and how they're handling people at the southern border?
I think there's been a lot of people have been angry and disappointed about the promises that Biden has made versus a lot of continuity and parallels to policies under Trump, albeit the rhetoric has obviously softened. So for example, we've seen Biden send 1,500 National Guard [troops] to the border, but they're not there for the same militarized show. They don't have the same authority that Trump gave them when he did something very similar, so are these slight differences.
There are other pathways that Biden has either discussed or has been opening, but I think that the two things that have people most concerned that could replicate exactly what we saw in our Title 42 is one, the transit ban, which is something that I've been concerned [about], which is very similar to a policy that Trump was proposing, which largely makes most migrants ineligible to request asylum at U.S. borders if they've transited through another country and not requested and been denied asylum first and attempt to enter in between ports of entry. It seems to be very rare exceptions for that.
Or migrants have to make an appointment with customs and Border Patrol through an app. There's been a lot of issues with that rollout. Those who are deemed ineligible will be subject to expedited removal through what's called Title 8, which was in place before. But a lot of the concern is speeding up that process with giving migrants very little avenues to try to claim protection when in reality many of the people who've been entrapped by Title 42 before that by the migrant protection protocols largely have protection claims.
Well, and one of the answers to some of these things is Biden's administration saying, Hey, Mexico is a safe place for some of these refugees and for some of these migrants. But that's not necessarily the case. Correct?
I agree. First, it offloads U.S. responsibilities to asylum seekers. This is what scholars call externalization of borders, and the U.S. isn't the only country that does this. We see the EU, for example, having agreements with countries like Libya and Turkey. We see Australia offshoring asylum seekers in the past to Papua New Guinea and islands, which it claims are not part of its territory. This is the U.S. doing the exact same thing, and it's not the first time. I mean this approach dates back to actually the 1980s in the U.S. and earlier policies that I've actually studied where the U.S. has intermittently tried to actually offload border enforcement to Mexico, leading to not necessarily a buildup at Mexico southern border with Guatemala, but much more interior immigration enforcement and checkpoints, which all the research has shown, has done very little to deter migrants, especially in the medium and long term.
What it does is expose them to a lot more harm. It makes their journeys much longer, more circuitous. In my own research primarily that I've conducted down in Mexico and Guatemala on the impact of a lot of these policies has been the proliferation of crimes that are committed against migrants in Mexico with near total impunity. While people say Mexico's laws on the books look pretty good, their asylum laws are technically more expansive than those of the U.S. They do have mechanisms in place to offer temporary humanitarian protection to migrants who experience crimes in Mexico. But in practice because of pervasive corruption, impunity, more resources dedicated to deterring and deporting migrants where that's the premium, it's a conflict of interest. In reality, access to these mechanisms is very low.
So we've seen already some of the results of this. So we look at the impact of policies like Title 42, like the migrant protection protocols, which many call “remain in Mexico,” which basically trap migrants in some of the most dangerous cities of northern Mexico as they're awaiting their turn to try to escape harm, and oftentimes become victimized again in Mexico. You see many organizations document thousands of different kinds of crimes and extortion and attacks against migrants who've been trapped in Mexico with very little access to protection or recourse.
Specifically with the expiration of Title 42, what kind of situations has this created on the border in recent weeks? What does it look like on the ground there now?
Obviously, I think that information is still emerging. What's interesting is that we have this media narrative of chaos, which I would argue is often manufactured in advance to justify the policies in our arsenal, which in many cases, Title 42 was implemented or justified the fact that it was going to stem chaos at the border, the impact was actually the reverse where it actually created a humanitarian crisis, as I mentioned, in terms of shelters being overcrowded, people having no access to submit claims, crimes that were being committed against migrants by not just criminals and cartels, but by state officials and police alike. For example, we saw the devastating fire that happened in the detention facility in northern Mexico, all as a result of these particular entrapment policies.
But what's interesting is in the last few days, at least from what I've been reading on the border, this sort of crisis hasn't materialized. In fact, we've seen the numbers go down, which is interesting to see. Some argue that we might have some increasing numbers at the borders in the coming weeks, largely as a shift in these policies. Sometimes communication within networks is not very smooth of what's actually going on. Many people don't actually understand these laws or policies as simply relieving the bottleneck. So many believe that if these increases do materialize, they're likely to be quite short-lived. I think the concern that we're going to see is the way that people are going to be received back in Mexico will have some parallels to under Title 42, "remain in Mexico." Again, where they'll be sent back to Mexico. It depends which nationalities Mexico is willing to accept, but also the fact that these will no longer be people that are expelled.
So under Title 42, people were just expelled across the border. What happened is one, that there were no legal consequences and so they weren't technically apprehended or deported. So what happened is you had an increase in recrossings. The recidivism rate ballooned through the roof. Again, creating this idea of crisis of numbers, but in many cases these were the same people trying over and over again. But what Title 8 processing is going to do, is these will actually be rapid deportations, which carries much stiffer consequences for these migrants, again, who often have ballot protection claims. Under expedited removal, they can be subject to five or 10 year bars on re-entry.
Crossing unauthorized is only a misdemeanor. But again, if they're put into these proceedings, which this would do, recrossing could be charged as a felony. So now Mexico wouldn't just be receiving people who are expelled that are in transit and maybe trying to try again, but deportees, which is a whole different vulnerability that becomes attached to it, who are also extremely vulnerable to those who might take advantage of these individuals and their desperation and being actually more trapped because again, now that they have been put into the actually deportation process.
Then how much of this is tied to the lack of broader immigration reform? Because it's been some time since there's been comprehensive reform on the level where something like this needs to be approached. How much of this is tied to the lack of that broader reform?
It's all tied together. Something that I've spoken about a little is again, the lack of legal pathways. Again, some of these changes, there's proposals to open processing centers in, I think Guatemala. I believe in Colombia might be the other place. Again, the idea that migrants can now have access to this app to make appointments, but they're very, very limited considering those who have real protection needs and in fact they don't help the most vulnerable.
So if you are afraid to report a crime to the police or even to go anywhere in the country because the gangs might be following you, the last thing you're going to do is go to a processing center and say, "Can you help me from the place that I'm already really fearful of in the first place?" Similarly, those who are most vulnerable or those who might not have access to wifi to use these kind of apps, I've heard they often don't work very well south of Mexico City or in very remote areas that migrants are often pushed into because of Mexico's increasing enforcement landscape. So it's not like you could just traverse Mexico freely and get to the border. Mexico's enforcement apparatus is really geared toward pushing people into the most dangerous places, both in places that might be controlled by cartels, jungles, deserts, extremely inhospitable places, places where an app may not really be functioning at one of a thousand appointments a day.
Similarly, I think Biden put in some policies for humanitarian parole specifically for Venezuelans, for Cubans, for Nicaraguans, for Haitians. But these are only limited to 30,000 a month, and everybody else is now subject to these policies. Again, it privileges those who have a sponsor in the U.S., who have a valid passport, who can pay for their ability to even get on a plane and come here and apply for those processes. So this is all related to the lack of legal avenues that we have and how minuscule they are.
But I think another concern is also the deflection of what do we do for people who've been here for 20 or 30 years. Again, we haven't had any revision of our immigration policies. We've had countries that are given limited access to temporary protective status, in some countries that's going on decades. This again doesn't deal with people fleeing new disasters. You often have to have arrived before a certain date unless the country becomes re-certified. Again, those don't have any pathway to permanent residency or to citizenship.
We're going to see some decisions come on DACA very soon, what happens to our young people. While those who were in the process before the rescission can still renew, but new applicants cannot. I think what we often hear in this immigration landscape on both sides of the aisle now is we can't have immigration reform until the border is secure, which I would argue is a self-fulfilling fiction. The metrics, how we know that, are not very clear. The practicality of sealing off the border is impossible with one of our largest trading partners. So it's always a political football that the border can ever be secure enough, hence we cannot have that conversation. So I think those two conversations are often related, but it's also deflecting against what are we doing for the people who've been living here and contributing to our communities also for a very long time.
We've covered a lot of ground so far, but are there any important points that we've missed in terms of Title 42 or the broader immigration picture and how those tie together?
I think what's really important to note, and I think the take home for policies like Title 42 and the asylum ban is that these are likely illegal both under U.S. law, as well as international law. We are going to see these litigated. Already, I believe, there's been lawsuits filed, and these were not done in the name of public health. They're really ways that are eroding the asylum system and people's access to even have a claim. Many of these claims are meritorious. Even though there's some immigration judges with very harsh track records, still, the approval rate for those who go through their cases in immigration court is still above 50%, even given the fact that there's some judges that deny almost everybody. Nationally, we know that many of these people have valid protection claims.
There's a scholar, David Fitzgerald, that I'm going to use his term; he calls this the “catch 22” of asylum. So once you reach a country's territory, you have the legal right to lodge a claim for asylum. The country doesn't have to grant it to you, but you have the right to do that. So what these policies do, in addition to a host of similar policies that have I mentioned have been devised around the world, is they create this catch 22 because they're fully devised on preventing migrants from even having that chance to get there.
In doing so while also pushing out not just protection to other countries, but also enforcement in terms of deterrence and detention and deportation, it's that they're literally placing people in harm's way again. So these are people already fleeing various forms of persecution in their home countries who are now, because they are vulnerable, have limited avenues to move. The very few, at least in Mexico, protection avenues they have are beset by corruption, overcrowding, limited availability. These are ripe opportunities for exploitation as well. So then you have people additionally victimized right on their routes to attempt to receive protection from the violence that they were fleeing in the first place.
The last take home is I think we have misconstrued what people are fleeing. These causes are often interlinked, but in many of the cases, especially the ones that I'm most familiar with, they're fleeing various forms of violence, persecution, instability. I think if we think about our own role in the United States, and especially if we think about our role toward Central America, much of South America, the U.S. is directly complicit in a lot of these destabilized environments in the very countries where people are fleeing. Instead, we wash our hands or say, “not our responsibility,” but I think it's really important to note the legacy of U.S. military intervention, support of violent governments and very recently destructive economic policies, which are ravaging livelihoods and the climate that are all propelling people to leave. So I think it's really important that we also not just tie what's going on at the border to our larger immigration policies, but also to our foreign policy decisions as well.
That’s it for this week of RadioEd. If you found this episode interesting, make sure to check out some of the work Galemba is doing at the newly launched Center for Immigration Policy and Research at Korbel. It focuses primarily on immigrant populations from Latin America in the Rocky Mountain West, and associated transnational dynamics of migration along three interrelated pillars: social; economic; and law and politics.
Galemba also released a book earlier this spring called Laboring for Justice: The Fight Against Wage Theft in an American City, which highlights the experiences of day laborers and advocates in the struggle against wage theft here in Denver. It’s available wherever you buy your books and includes a series of contributors from DU and around the city.
As this is our season finale, we have a couple more things to cover before we sign off.
I’m going to switch out of my broadcast voice for this.
We’re saying goodbye to our production assistant, Débora Rocha. She’s been a wonderful addition to our team, and we’d keep her around if we could. Sadly, she’s graduating in a couple weeks, and she’ll be a tremendous addition to wherever she ends up next. I know I speak for my co-host, Emma Atkinson, in saying that we’ll miss her and that we wish her luck. We know she’ll be able to accomplish great things, and we wouldn’t be surprised to see her in the director’s chair of a major movie someday.
We’re also saying goodbye to Tamara Chapman, who is our managing editor and the Director of Strategic Publications Marketing & Communications at DU. She’s retiring this summer and she’s an institution unto herself. She’s tremendously nice and so humble that we had to leave this out of the initial script for fear of her removing it with her mighty red pen. We’re going to start by bringing in Emma to share our thanks to Tamara.
A million thanks to Tamara. She’s been integral to the production of this podcast—and even more integral to our entire communications team here at DU. She’s a ray of sunshine in the office and we’re happy to see her every. Single. Day. DU Comms isn’t DU Comms without Tamara Chapman, and we’re gonna miss her dearly. Tamara, we love and appreciate you, and to say that we’re sad to see you go is the understatement of the century.
Tamara, I’m a better writer, content creator and person for having the distinct pleasure of working with you. We’re going to miss you, but I know we’re all excited to hear about your next big adventure.
Time to put the broadcasting back on and play that outro music.
That’s it for this week’s episode of RadioEd. Thanks again to Rebecca Galemba at the University of Denver’s Josef Korbel School of International Studies for lending her expertise on this complicated subject. Also, thank you to everybody who has taken the time to listen to one, some or all of our episodes this season. We appreciate you letting us be part of your busy lives.
See you next fall for Season 4. I’m Matt Meyer and this is RadioEd.