The End of Title 42 and the Dangers of Inconsistent US Migration Policy

Thursday 11 May saw the end of Title 42, an infrequently used piece of legislation which allowed for stricter and faster expulsion of migrants and asylum seekers under the auspices of communicable disease prevention. It was only through a lengthy and hard-fought court battle that it was overturned.

One side-effect – intended or unintended – of Title 42 was that of deterrence. This most recent pandemic response iteration of the legislation sat alongside the Trump-era Migrant Protection Protocols, a set of policies explicitly targeted at irregular migration. The 2019 policy, known colloquially as ‘Remain in Mexico’, required migrants whose route started outside of Mexico and who attempted to enter the US via the US-Mexico border to seek asylum in one of the countries along their journey before crossing into the US. Together, these two policies transmitted a clear message from the US government: that there is a ‘right’ way and a ‘wrong’ way to enter the US, and tolerance for those entering the ‘wrong’ way is very low.

To add to the legal and logistical complexity of the US’s 1,954-mile border with Mexico, on 5 January 2023, the Biden administration announced new measures to ‘increase security at the border and reduce the number of individuals crossing unlawfully between ports of entry’, with notable attention paid to migrants from Venezuela, Nicaragua, Haiti and Cuba. While this announcement included plans to expand the existing parole policy for Venezuelans to include asylum seekers from Nicaragua, Haiti and Cuba, it was also explicit that the expansion will exclude anyone who takes an irregular migration route through Panama or Mexico or across the US border from 5 January onward.

The announcement’s mention of Panama alludes to the Darién Gap, a 66-mile stretch of mountainous jungle where migrants risk run-ins with venomous snakes, violent gangs, injury and communicable diseases. Reports of children separated from families or undertaking the journey solo, death from dehydration, disease spread through contaminated water and violence – including sexual violence – at the hands of gangs continue to pour in from region. The International Organisation on Migration estimates that almost 250,000 people crossed or attempted to cross the Darién Gap in 2022, a near-twofold increase from 2021 when the number was around 130,000. 36 deaths were documented in Darién in 2022, with the actual number likely to be much higher but hard to document due to the inhospitality of the terrain and the clandestine nature of the crossing. And it isn’t just migrants from Latin America and the Caribbean that choose the Darién Gap; increasing numbers of Chinese migrants as well as migrants from the Democratic Republic of the Congo take this route, making it not just a Latin American or Western Hemisphere issue, but a global one.

Migrants continue to make this perilous journey for one main reason: what they face on the road ahead is by and large more favourable than what they leave behind. Stella, a heavily pregnant Congolese migrant appalled at the state of the medical facilities in Darién, summed up this sentiment by saying, ‘but I can’t choose, can I? And I can’t come a long way like this to just go back’. The New York Times documented the harrowing account of Venezuelan migrant Alexandra, who was separated from her daughter Sarah while crossing the Darién Gap. Injured and struggling to keep up with fellow migrants, Alexandra temporarily left Sarah in the care of a stranger and fellow migrant, only to become completely separated from the pair. After years of austerity, shortages and uncertainty, Alexandra had chosen to leave her law practice and life in Venezuela behind and had crossed the Atacama Desert to Chile. Unable to make a living there, she left for the US via the overland route through Colombia, Panama and, ultimately, Mexico.

Alexandra’s story aired in January, two weeks after the announced change in the US’s policy towards irregular migration through Panama. When – or if – she and her party reach the US–Mexico border, their path – like so many thousands of others’ paths – will likely exclude them from access to the expanded asylum scheme.

The Biden administration repealed ‘Remain in Mexico’ when Joe Biden took office in 2021, and the policy officially ended after a 30 June 2022 court ruling. Ending Title 42 similarly opens access for migrants, asylum seekers and refugees. Expansive immigration policy is seen as beneficent and inclusive by many – including notable advocacy groups such as the Human Rights Campaign, the Antidefamation League, Save the Children and the National Association for the Advancement of Colored People (NAACP) – and plays well to Biden’s left-leaning and progressive base. But the US’s complex relationship with migration means that these policies also go a long way toward alienating those who lean more conservative. Many Republicans – including Florida governor Ron DeSantis, who many view as a 2024 hopeful; former president Donald Trump, arguable frontrunner for the Republican ticket in 2024; and Texas senator Ted Cruz, a fixture of the Republican party – have all run on, been elected on and enacted overtly anti-immigrant policies, including DeSantis’s provocative relocation of asylum seekers from Florida to Martha’s Vineyard in September 2022. A ‘soft-on-migration’ stance could therefore put a Biden-Harris re-election campaign on rocky footing in 2024.

In the days leading up to 11 May, 1,500 US troops were deployed to reenforce the southern border in anticipation of a surge in migrant numbers. In the lead-up to the change in policy, border encounters increased from 6,000 a day to 11,000 a day. Migrants arrived on buses, planes and even the infamous Beast Train (La Bestia) or Train of Death, a perilous cargo train that runs the north-south length of Mexico. But since 11 May, the US-Mexico border has been relatively calm at crossing points such as Ciudad Juarez as migrants bide their time and wait for appointment slots with US officials to open up. No longer subject to immediate expulsion without recourse, migrants are demonstrating a greater willingness to wait for appointments with US Homeland Security, the Office of Refugee Resettlement and other government agencies. The anticipated tidal wave morphed into a steady stream.

As the US continues to struggle internally with its immigration policy, the looming 2024 election means that presidential hopefuls – and candidates at all levels – must take bold stances on the issue. The potential for changes in administrations and governing bodies means that the future of US migration policy is unclear – and a lack of clarity can be dangerous. With its global prestige damaged by the chaos of the Trump presidency and the current internal turmoil of a divided legislative branch, the US can’t afford to alienate or anger its neighbours, especially Mexico to its immediate south and Central America writ large. A ricocheting migration policy, subject to the changing winds of local, state and national politics, undermines the US’s role as a mediator, model and reliable ally on the global stage. And as all eyes are focused on what changes might come, we risk losing sight of the dangers faced by migrants themselves.

The views expressed in this Commentary are the author’s, and do not represent those of RUSI or any other institution.

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