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As the US debates Title 42 policy, asylum seekers are left in limbo

Juan José stands on the Mexican side of the Rio Grande, his brown eyes fixed on the long, meandering line across the water. There, about 200 people are waiting to enter the United States, part of a recent influx of asylum seekers heading to the border city of El Paso, Texas.

But the 19-year-old Venezuelan is not among them. For three days since his arrival, Juan José has been biding his time, waiting to see if he ends a controversial US border policy known as Title 42.

An infrequently used section of the US Code that dates back to 1944, Title 42 allows the federal government to deny asylum seekers on public health grounds. Former President Donald Trump first invoked the law in March 2020, as the United States grappled with the early days of the coronavirus pandemic.

But in the years since, Title 42 has been used to remove millions of asylum seekers at the US-Mexico border, prompting protests that it violates their due process rights.

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In November, a US District Court judge declared the policy “arbitrary and capricious,” ruling Title 42 terminated. But the US Supreme Court stepped in Monday to temporarily block the proposed expiration date, set for December 21. The decision comes in response to a petition by Republican officials in 19 states, who warned of a surge in asylum seekers if Title 42 expired.

Uncertainty over Title 42 has left people like Juan José in limbo, unsure of their future. And cities like El Paso continue to prepare for an increase in border crossings, with El Paso Mayor Oscar Leeser declaring a state of emergency on Saturday.

As a bitter wind whips against his tough jacket, Juan José puts his trembling hands in his pockets and tells his story. Exactly two months have passed since he left home for the United States; he did not tell his parents about his plans until he was already in Colombia.

His father was “surprised and sad,” Juan José said, but understood his son’s desire to earn money to care for his siblings. Besides, what could his father do about it? “He was already on my trip.”

Crossing north from Colombia into Panama, Juan José passed through the dense and treacherous forests of the Darién Gap. There he saw corpses, other refugees and migrants, he supposed, who died “trying to get out of that damn jungle.”

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Then, when he arrived in Mexico, he learned the bad news: Venezuelans, previously exempt from Title 42, now also faced deportation, as part of a deal between Mexico and the Biden administration.

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The agreement allowed a limited number of Venezuelans to apply for asylum in the US, but only if they could afford a passport and a flight and had a sponsor in the US to help them financially. Those who reach the border would have to stay in Mexico.

“I got angry because [of] All the journey I just went through was for nothing,” he said. “But I kept going until I got to Ciudad Juárez,” a Mexican city just across the border from El Paso.

Now, Juan José is weighing his options. If Title 42 ends, he can head to New York City. If the policy continues, either through Supreme Court action or as part of a congressional deal, the 19-year-old will settle in Mexico.

Thousands of people share Juan José’s predicament. The potential expiration of the policy has given hope to asylum seekers headed to the United States. However, those hopes are tinged with uncertainty due to the ongoing legal and political fights over the fate of Title 42.

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Experts like Aaron Reichlin-Melnick, an attorney and policy director for the American Immigration Council, warn that Title 42 exacerbates existing confusion over US immigration policy.

“Title 42 is a distraction,” Reichlin-Melnick said. Politics “is basically a blunt instrument for a problem that needs complex solutions.”

Politicians in Texas disagree. Texas Attorney General Ken Paxton and Governor Greg Abbott want Title 42 to continue, and their state is part of the ongoing Republican-led legal effort to keep the policy in place, fearing that an increase in border crossings could overwhelm government resources.

A federal appeals court on Friday refused to block the termination of Title 42, opening the door for the Supreme Court’s decision to intervene on Monday. Reichlin-Melnick has said that the Supreme Court is the most likely path for the long-term continuation of Title 42.

Governor Greg Abbott campaigning in front of a banner with his name printed on it.
Republican Gov. Greg Abbott of Texas warned of chaos at the US-Mexico border if Title 42 policy ends [File: Go Nakamura/Reuters]

Other politicians, including Texas Republican John Cornyn and West Virginia Democrat Joe Manchin, have previously called on US President Joe Biden to find a way to extend Title 42 beyond its scheduled expiration.

In a letter to the president, the two senators joined US Representatives Henry Cuellar and Tony Gonzales, both Texans, in pushing for an extension, alleging that the US Department of Homeland Security (DHS) does not have “sufficient support or resources” to manage the extension. end of Title 42.

DHS has released a summary of its post-Title 42 plans (PDF), though details are scant. It focuses mainly on reviews of the asylum system, as well as a proposal to send more resources, such as medical supplies, to the border.

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“The only real solution,” the document says, “is for Congress to fix our broken and outdated immigration system.”

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Meanwhile, the Biden administration has signaled that it wants Title 42 to expire, though the White House is said to be considering a policy that would reduce the number of refugees and migrants eligible for asylum from countries including Venezuela, Haiti, Nicaragua and Cuba.

Such a policy would be an extension of the agreement that limits Venezuelan asylum seekers. It has drawn criticism for being similar to a plan put forward by former presidential adviser Stephen Miller, an immigration hardliner who worked for the Trump administration.

A long line of refugees and migrants on the banks of the Rio Grande.
Refugees and migrants, many wrapped in blankets to keep out the cold, line up on the US side of the Rio Grande in an attempt to seek asylum. [Jose Luis Gonzalez/Reuters]

In a statement issued on December 13, Homeland Security Secretary Alejandro Mayorkas tried to downplay any changes to US border policy should Title 42 expire.

“Once the Title 42 order is no longer in effect, DHS will process individuals found at the border without proper travel documents using its longstanding Title 8 authorities,” Mayorkas said.

“Let me be clear,” he continued. “Title 42 or not, those who cannot establish a legal basis to remain in the United States will be removed.”

Under Title 42, some asylum seekers were sent back to their home countries, but most were simply returned to Mexico, making it easier for them to try to cross the border again. According to US Border Patrol data, repeat apprehensions increased by approximately 20 percent after Title 42 use began.

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But if the policy does expire, experts like Reichlin-Melnick predict that people who attempt to cross multiple times will face harsher penalties, including the possibility of federal deportation, a more formal removal process that carries significant legal risk. For example, people who try to re-enter after a formal deportation can be arrested and imprisoned.

“There is no doubt that more people will be released [into the United States] in the short term,” Reichlin-Melnick said of the expiration of Title 42. “The real question is the long term. There will be more people charged with misdemeanor trespass, more deportations, and ultimately fewer crossings.”

He likens Title 42 to “putting a Band-Aid on a festering wound.”

A family talks with shelter workers in front of a bus.
Asylum seekers in El Paso, Texas, arrive by bus at local shelters, though city officials warn resources are running low. [Ivan Pierre Aguirre/Reuters]

Robert Painter, legal director of refugee rights organization American Gateways, said the US immigration system is ill-equipped to handle modern drivers of displacement, such as climate change, domestic violence and non-state actors. like gangs and cartels.

He is currently preparing to litigate an asylum case involving a Honduran woman who fled to the United States after experiencing domestic violence. Women like her can apply for asylum because there is no hope of protection or legal recourse in her home country.

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“It takes hours of time, hours of testimony preparation and 350 pages of evidence, and I still couldn’t say this. [case] has a good chance of success,” Painter said.

Meanwhile, tensions are growing between his organization and Texas politicians like Paxton, who is currently investigating American Gateways and other non-governmental organizations for allegedly using money from the Texas Bar Foundation to “support the border invasion.”

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Border cities have already begun to see an increase in crossings, with El Paso noting a jump beginning in late August. Advocates and city officials told Al Jazeera that the shelters are already filled with too many people.

“Everything is extremely fluid, so to tell you exactly what our plan is, it’s a little tricky because it’s so fluid,” said Laura Cruz, an El Paso spokeswoman.

Cruz noted that the city recently spent $9 million to house, care for, and relocate refugees and migrants from Texas to destinations like Chicago and New York City, though the city can be reimbursed by the Federal Emergency Management Agency (FEMA). most or all of it. money.

Two brothers smile on the banks of the Rio Grande.
Two brothers from Venezuela, Brian and Miguel, take a break from selling cigarettes at a border crossing outside of El Paso, Texas. [Luis Chaparro/Al Jazeera]

Back on the banks of the Rio Grande, on the outskirts of El Paso, Juan José dreams of landing in New York City. So do other nearby asylum seekers. Josefina, a 21-year-old from Venezuela, hopes to earn enough money there to pay for better heart medicine for her father. Brothers Brian, 8, and Miguel, 11, also plan to live in the big city.

While their mother goes to get water, the brothers sell cigarettes to people waiting in line.

“They say that Venezuelans are the worst,” Miguel said. “That is why we are now not allowed to enter the US, only people from other countries. We crossed a week ago, but they immediately sent us back to Mexico.”

Now, like Juan José, they wait.

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“We want to go to New York or Miami,” Miguel continued. “They say it’s beautiful, but I don’t know. Is it too far from here?

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