by Barbara Franz (posted on October 31, 2021)
Pointing at “crisis at the border” and the “emergency” produced by a flood of immigrants there, the Biden Administration is embracing mass expulsions based on the continuation of Title 42, an obscure provision of the 1944 U.S. Public Health Services Law. The former Trump administration invoked the clause to achieve its long-desired goal of de facto eliminating the right to seek asylum in this country. The Biden administration has continued using Title 42 which has been counterproductive in that it has massively contributed to the current surge in border apprehensions. U.S. Custom’s and Border Protection officers apprehended and deported 1.7 million people in 2021 at the southern border. At the same time, ports of entry remain open with nearly 11 million people crossing the southern border every month and thousands flying into the United States every day. By embracing mass deportations, the Biden administration has made clear that its commitment to human rights is more rhetoric than actual policy. However, this policy will backfire and hurt the Democrats in the midterm elections one year from now.
The number of apprehensions is inflated because the identity of people deported through Title 42 is not recorded. Many migrants enter the country twice or more times and therefore many thousands of deported migrants are being counted more than once in Border Patrol apprehensions statistics during the last fiscal year. The recidivism rate may be as high as 38 percent — which means that more than one-third of the individuals removed from U.S territory were apprehended more than once. By continuing Title 42, the Biden administration contributes to the ever-growing backlog of cases at the border.
Title 42 allowed the Trump administration to repudiate American asylum law. The Biden administration has continued to use the same perceived (and clearly self-inflicted) crisis rhetoric to justify the continued enforcement of Title 42. Elaine Scarry argues that while the normativity of the anti-immigrant view calls for the enforcement of existing law, crises and emergencies call for the suspension of or outright abrogation of existing law. The Biden administration’s continued reliance on Title 42 reinforces the perception that we are experiencing a state of emergency on the southern border, and that, therefore, we need to restrict the rule of law in the name of the public heath. In his book State of Exception, the philosopher Giorgio Agamben investigates the increase of power by governments in such “supposed times” of crises. Joel Sati shows how such governmental claims of emergency are important because they allow politicians to frame the response to a problem as needing to be imminent in order to overcome “the threat” to the body politic. This strengthens and spreads dangerous xenophobia, mobilizing Trump Republicans. On the other hand, it disappoints progressives and therefore will reduce the progressive vote for Democrats in the midterms.
Instead of mass deportations, U.S. asylum law should be reinstated. Even during the pandemic, asylum applicants can be easily tested, and if COVID-19 positive, they can be quarantined and treated medically. If negative, they can be released temporarily into the country pending a final immigration court decision. By eliminating recidivism, this would decrease the humongous case backlog. Mass deportations not only violate the law, they run counter to America’s humanitarian responsibilities and international obligations. Reinstating U.S. asylum law will dampen the energy of the Right-wing by reducing the backlog and the appearance of a crisis, and it will energize and gain the support of progressives that will be needed for the midterms.
