{"id":638,"date":"2022-02-12T00:17:26","date_gmt":"2022-02-12T00:17:26","guid":{"rendered":"http:\/\/thanassiscambanis.com\/sipa\/?p=638"},"modified":"2022-02-12T00:17:26","modified_gmt":"2022-02-12T00:17:26","slug":"the-system-is-working-exactly-as-it-is-intended","status":"publish","type":"post","link":"http:\/\/thanassiscambanis.com\/sipa\/2022\/02\/the-system-is-working-exactly-as-it-is-intended\/","title":{"rendered":"The system is working exactly as it is intended"},"content":{"rendered":"\n

How the US asylum system uses a health regulation to racially discriminate<\/strong><\/p>\n\n\n\n

by Dorothea Koehn<\/p>\n\n\n\n

\u201cTitle 42 is an obscure policy,\u201d is one of the first things Jonathan Goldman, executive director of the Student Clinic for Immigrant Justice, told me when I asked him about this incredibly important, if not widely known, piece of anti-immigrant legislation I had only recently learnt of myself.  <\/p>\n\n\n\n

Title 42, as I had discovered, refers to Section 265 of Title 42 of the 1944 US Health and Service Act. This policy states<\/a> that in the \u201cexistence of any communicable disease in a foreign country\u201d which presents a \u201cserious danger of the introduction of such disease into the United States,\u201d the US has the power to prohibit \u201cthe introduction of persons and property from such countries\u2026 in order to avert such danger.\u201d In basic terms, this provision allows the US government to bar entry to both individuals and goods who are seen as posing a risk of spreading an infectious disease into the US. <\/p>\n\n\n\n

In March 2020, under guidance of the Trump White House<\/a>, the Centers for Disease Control and Prevention (CDC) invoked Title 42 in wake of the COVID-19 pandemic. US border agents were granted the ability to turn away asylum seekers at the border without an opportunity to apply for asylum. Title 42 remains in place today and has been used to expel over 1.2 million<\/a> asylum seekers to date. The policy has effectively ended asylum processes in the US altogether.<\/p>\n\n\n\n

The U.S. government\u2019s invocation of Title 42 has been critiqued widely by advocacy groups, most notably through the #WelcomeWithDignity campaign launched by a coalition of 85 NGOs as well as through multiple cases of litigation brought against the Trump and Biden administrations. The United Nations Refugee Agency, UNHCR, has opposed the U.S. government\u2019s use of Title 42 since its implementation during the COVID-19 pandemic, and continues to do so<\/a>. <\/p>\n\n\n\n

As I started investigating why Title 42 should stop being used, initial answers were straightforward: There is no public health rationale for it and it violates both national and international law.<\/p>\n\n\n\n

In October 2021, Physicians for Human Rights published open letters<\/a> from 1,383 medical professionals stating that the administration\u2019s use of Title 42 \u201clacks epidemiological evidence\u201d and has \u201cno basis in public health best practice.\u201d Despite the availability of COVID-secure policy alternatives<\/a>, including already-established self-isolation and secure transit procedures, the administration continues to single out asylum seekers for expulsion. There is no evidence to suggest that asylum seekers are particularly likely to bring COVID into the US, and as COVID tests, masks and vaccines have become widely available in the US, the policy\u2019s public health basis looks more questionable by the day.<\/p>\n\n\n\n

Kate Jastram, Director of Policy and Advocacy at the Centre for Gender and Refugee Studies, called the current use of Title 42 \u201cnonsensical\u201d with no health or legal rationale: \u201cTitle 42 is an absolute violation of treaty obligation and domestic law,\u201d she said. The UN Refugee Convention, which was integrated into US national law with the 1980 Refugee Act, stipulates that you have the right to have your case heard. \u201cInstead, Title 42 presents a total negation. Asylum has become irrelevant,\u201d Jastram said. <\/p>\n\n\n\n

Nevertheless, Title 42\u2019s misuse has survived the inauguration of a new administration and the relaxation of other COVID restrictions. To me \u2013 someone who, despite not being a US citizen, was able to move here three months ago on a student visa needing only a negative COVID test \u2013 the persistence of Title 42 was confusing. That confusion has grown since. Since November 8th<\/sup>, my German family can visit me freely as the administration lifted the \u201ctravel ban\u201d previously imposed on 33 mostly European countries. And even though I followed the presidential race from the other side of the Atlantic, I remember the central position<\/a> immigration took in the Biden campaign and his many promises to reverse<\/a> damaging Trump-era restrictions. I decided to find out why the Title 42 policy is still in place. <\/p>\n\n\n\n

Nobody’s Priority<\/strong><\/p>\n\n\n\n

Initially, when I asked why Title 42 remains in place despite the change of administration, I was offered a range of explanations centered around political constraints and calculations of the Democratic Party.  <\/p>\n\n\n\n

Jastram argued that Democrats have backed themselves into a corner on this issue and lack the political will and effort needed to reverse the Trump-era policy. In her view, Democrats are worried that \u2013 since immigration has become a \u201ctoxic issue\u201d and \u201cweaponized\u201d in the US \u2013 if they push to discontinue the use of Title 42, they will lose support on other key issues in Congress. \u201cIt is easier to wreck something than to put it back into place. In a way it is in place because it was already in place,\u201d she said. The immense effort needed to rebuild an eroded asylum system, in Jastram\u2019s view, is simply not worth it to Democrats amid other legislative priorities.<\/p>\n\n\n\n

Jonathan Goldman, Executive Director of the Student Clinic for Immigrant Justice, suggested that, as most asylum seekers cannot vote in the US, stopping the use of Title 42 is simply not a political priority. While he considered it \u201cpoor political calculus by the Biden administration\u201d to continue employing Title 42, he believed it to be a strategic decision nonetheless. In Goldman\u2019s view, Democrats are trying to appeal to Republican voters while assuming that most of their voters know little about this complex piece of legislation and that backlash against the failure to discontinue the use of Title 42 will therefore be less of an issue than the potential controversy that would ensue in an actual attempt at discontinuation.<\/p>\n\n\n\n

Michele Garnett McKenzie, deputy director at The Advocates for Human Rights, posited that Democrats have an immense fear of political blowback if something ends up going wrong \u2013 such as COVID cases going up – after ending the use of Title 42. Finally, she echoed Goldman\u2019s sentiment that Title 42 is just a little too \u201ctechnical\u201d as a policy to risk causing the administration wide-spread backlash. Outside of migrant advocacy circles, Title 42 receives less public outrage than cornerstones of Trump\u2019s violent immigration policy – his decision to put kids in cages and his \u201cRemain in Mexico\u201d policy.  <\/p>\n\n\n\n

I did not just get these answers, however, when I asked why Biden has continued to employ Title 42. I also got a number of raised eyebrows for being so naive as to trust that a change in administration would cause an end to a deeply anti-migrant policy.<\/p>\n\n\n\n

\u201cThinking along the lines of \u2018Trump was the problem, why isn\u2019t Biden the solution\u2019 is fundamentally the wrong way to think about US immigration,\u201d McKenzie said, expressing a sentiment shared by almost everyone I interviewed. <\/p>\n\n\n\n

My assumption that asylum and immigration were champion issues of the Democratic party was shattered quickly \u2013 and I realized that something I was confused by was considered par for the course by those who work on US immigration.  <\/p>\n\n\n\n

\u201cThere were zero expectations on our part that President Biden would do anything differently,\u201d McKenzie said. \u201cTrump did not change one statute,\u201d she continued, emphasizing that the legislative bases for President Trump\u2019s abhorrent migration policies had already existed. References to the Democratic Party\u2019s political calculations and technical difficulties do not provide you with the full picture. Rather, to explain the Biden administration\u2019s failure to end the use of Title 42, my interviewees pointed me to the wider, historically anchored, hostile structures of the US migration system.<\/p>\n\n\n\n

“Racist in Design<\/strong>“<\/p>\n\n\n\n

\u201cTitle 42 is entirely consistent with how we have excluded \u2018aliens\u2019 in the past,\u201d McKenzie said: \u201cThe US immigration system is racist in design.\u201d Her opinion is common among migrant advocates: It reflects an understanding that Title 42 is different in magnitude, but not in nature. <\/p>\n\n\n\n

Title 42 disproportionately impacts people of colour. As it is employed along the US-Mexican land border, it singles out asylum seekers<\/a> who usually come from Central America, Africa and Haiti and are disproportionately Black, Indigenous or Latino\/a. Human Rights Watch has called upon the US government to examine its history of \u201cracial and ethnic violence\u201d and referred to Title 42 as part of a \u201clegacy of discrimination.\u201d <\/p>\n\n\n\n

Racial categories set the foundation of the US asylum system. When in 1921<\/a> the US first instituted numerical quotas capping immigration, countries from the Western Hemisphere were not included in these limitations, while immigration from Asian countries was entirely banned. Later, the Chinese Exclusion act prohibited Chinese people from entering the US. And even when in 1952 race was formally removed as an exclusionary criterion for immigration and naturalisation, it continued to be easiest to migrate from the UK, Ireland and Germany. <\/p>\n\n\n\n

Addressing the disproportionate impact Title 42 has on people of colour, Goldman insisted that Title 42 must be understood as an extension of an asylum system designed around racial lines: \u201cThe very foundation of the system is based on racism. In a way it is similar to building a house on a faulty foundation \u2013 you can add a beautiful first or second floor \u2013 but there will always be structural failure because of its foundation.\u201d Ultimately, addressing the US asylum system does not just mean discontinuing the use of Title 42 or dismantling what Trump did. <\/p>\n\n\n\n

\u201cReform will not solve this; rather, we need to overhaul the entire system,\u201d Goldman continued. The racialized hostility of the system does not only manifest itself in Title 42 or other Trump- and Biden-era policies. For one, the US asylum system is heavily backlogged<\/a> (at this point in time, the average time to have your asylum claim heard is nearly 3 years<\/a>). Furthermore, the majority of immigration judges previously worked for the Department of Homeland Security as opponent attorneys arguing against asylum seekers in immigration court \u2013 those judges have been statistically proven to be more likely to reject asylum claims, especially from people of colour.<\/p>\n\n\n\n

My conversations with advocates, and my insights into their attempts to navigate Title 42 in the context of the broader structures that perpetuate US asylum injustice, made it clear that Title 42 discontinuation would require breaking with the past rather than just with the Trump administration. McKenzie summarized this momentous task: \u201cHuman movement is an essential part of humanity. We need to design ways to make that happen safely, because it will continue to happen.\u201d<\/p>\n