With The Delay Of Vacating Title 42, The Death Toll Will Only Rise

CounterSpin interview with Melissa Crow on asylum policy.

Janine Jackson interviewed the Center for Gender and Refugee Studies’ Melissa Crow about asylum policy for the January 6, 2023, episode of CounterSpin. This is a lightly edited transcript.

Janine Jackson: The Biden administration is “appealing an order to rescind Title 42, a pandemic policy that has allowed it to quickly expel new migrants. It said it nonetheless planned to lift the policy.” So explained the New York Times in early December, if “explaining” can mean leaving readers a bit more confused.

We subsequently learned that the Supreme Court has halted the order to rescind the policy, leaving it in place while somebody decides whether it’s lawful.

If you can peer through the language, you’ll find Title 42, invoked as a supposed anti-Covid move under Trump as justification for the summary expulsion of asylum seekers—in theory, from both Canadian and Mexican borders.

Last fall, a district judge declared Title 42 no longer justified. But Republican attorneys general in 19 states opposed that, were denied the ability to intervene on it, and pushed it to the particular weird Supreme Court we have right now.

Once a piece of legislation or policy is deemed not just a “partisan football,” but an object lesson about the relationship of courts and legislators, you almost despair of news media approaching it in terms of its effects on human beings. What would it mean to put people at the center of the story of migration and immigration?

We’re joined now by Melissa Crow, director of litigation at the Center for Gender and Refugee Studies. She joins us now by phone. Welcome to CounterSpin, Melissa Crow.

Melissa Crow: Thanks so much Janine.

JJ: Let me ask you for some baseline clarity here. Title 42 was itself an intervention that countermanded existing laws and protocols on asylum, right? It was always business as unusual.

MC: Yes, that’s quite right, Janine. The Title 42 policy represents a radical departure by the US government from its decades-long practice of processing asylum seekers at the southern border—which, of course, is required by our domestic and international legal obligations to provide protection to individuals who are fleeing persecution.

But over the three years that it’s been in place, it has been, to some extent, normalized, particularly as a result of press reports. And as your organization has pointed out, reporters’ framing of the policy has really shifted since Trump left office.

The framing in many media reports that I read these days suggests that ending Title 42 would be a radical change that would result in a crisis, rather than a return to what had been our practice for more than 35 years under both Republican and Democratic administrations.

JJ: It’s interesting, because the presentation of rescinding Title 42 as having impacts—it’s not wrong that it would have an impact. It’s just, what is the perspective that we consider that impact from? And what I’m seeing a lot from in coverage right now is communities saying, we’re going to be the ones who are going to receive migrants, and we don’t have the support, necessarily, to take care of them. That, to me, is a different story.

Then that gets funneled into another media frame [in which] you can’t talk about social welfare without demonizing people who might need it, however briefly or in whatever contextual situation. So it’s not as though we couldn’t talk about impacts, it’s just the way they’re being talked about.

MC: Right. Humanitarian and legal service providers and shelters stand ready to assist migrants who are coming in, but they do need to partner, not only with the federal government, but with state and local governments to provide much-needed funding.

This talk about a “crisis at the border” is really, in my book, a misuse of language. We hear words like “surge,” or “flood,” or “wave,” and that language is really dehumanizing. It essentially compares people who are seeking protection and safety to natural disasters or military threats, as something to be feared. And it’s xenophobic, and we can do better than that.

We can use language that is more neutral, we can talk about an increase in the number of asylum applications, or a rising number of people seeking safety. But we don’t need to go to the extremes. We have always—well, until three years ago—we have always welcomed asylum seekers at our borders. And there’s no reason to stop now.

JJ: We even hear “invasion” at some point, which puts it really in a certain place.

It seems as though the main frame right now, in the wake of the Supreme Court’s decision, is partisanship: how the Supreme Court is being misused by Republicans to enforce or endorse a policy that really is a congressional matter. But then, also, the Biden White House is trying to have it all ways.

Human beings are showing up in coverage in a very secondary way, and as you’re describing, sometimes they’re described literally as pawns, political pawns, but then they’re not engaged in a way that actually challenges that.

So what human impacts can we expect from what’s being called, rather passively, an “administrative stay,” as though it were a non-action. I read one account that called it a “gift of time” to think about things. But this ruling by the court is not an absence of action; real consequences will follow from it.

MC: Yes, absolutely. And just to clarify, the only issue on which the Supreme Court has decided to weigh in is whether those 19 states have the right to intervene in this matter.

It’s kind of ironic, because nobody here, neither of the parties, really seems to question whether the Title 42 policy continues to be required as a response to Covid-19. It’s very clear from the arguments made by the anti-immigrant states that they’re viewing Title 42 as a border management tool, rather than a public health tool. And they’ve opposed virtually every other Covid restriction, except this one, which relates to asylum seekers.

In terms of human impacts, the Supreme Court’s decision to extend the stay pending their decision will continue to have deadly consequences for people who are fleeing persecution. Every day that the policy remains in effect, vulnerable individuals remain in legal limbo, and they’re exposed to grave dangers.

We’ve seen reports from Human Rights First and others documenting over 13,000 violent attacks against people expelled to Mexico under the Biden administration alone. And with this repeated delay of vacating the Title 42 policy, the death toll will only rise.

The Biden administration was prepared to end the policy before the holidays, and service providers ready to welcome asylum seekers at the border. Instead, those asylum seekers are continuing to languish in Mexico and elsewhere, in really dire conditions, under freezing temperatures, and the threat of violence by cartels, smugglers and the like, with really no end in sight for the foreseeable future.

JJ: And to the extent that media and reporters talk to those service providers, they get a very different perspective on the story.

And I have to say, I really resent that the narrow framing means that we can’t argue that Covid is still a crisis and at the same time argue that we shouldn’t be harming people who seek asylum as some sort of pretense of a public health measure. I feel like the media gives us this narrow window in which to have that conversation.

MC: Stephen Miller, who, as you know, was the architect of Trump’s anti-immigrant agenda, wanted to impose a Title 42 type policy long before the Covid pandemic. And when Covid happened in March of 2020, he seized on this opportunity to finally close the border to asylum seekers. But the pandemic was really just a pretext.

The Title 42 policy was implemented over the objections of leading public health professionals and experts at the CDC. In fact, the director of the CDC’s Division of Global Management and Quarantine, who ended up resigning, said explicitly that it’s morally wrong to use a public authority that has never ever been used in this way, and he said that it was evidence of discrimination.

JJ: Absolutely. Well, the frame that’s so big that it’s almost invisible in this coverage is, you know, I keep reading articles about the “solution to immigration”—immigration and immigrants are a problem. These human beings are, first and foremost, a problem.

And, of course, we need “reform.” And, of course, it’s a “divisive issue.” And all of these seem to be accepted tenets of the conversation here.

And what if we don’t buy them? What if we don’t accept that immigration is inherently a problem? What could the conversation look like if we talked about it in a different way?

MC: Yeah. I hate to sound trite, but this country is a nation of immigrants, and always has been. As you may know, there was a poll conducted not too long ago where nearly three quarters of Americans agree that the US should provide asylum to people fleeing persecution or violence in their home country, conducted by the US Immigration Policy Center at the University of California/San Diego. And it came out in December. And it was released by the Welcome With Dignity Campaign. I think they surveyed a thousand people across the political spectrum: 80% Democrats, 74% independents and 57% Republicans expressed support for asylum.

So I think that tells a very different story than the characterizations that you shared. And I feel like people are so quick to label those coming in, without really understanding the catalysts that caused them to flee in the first place.

JJ: We’ve been speaking with Melissa Crow, director of litigation at the Center for Gender and Refugee Studies. Find their work online at cgrs.uc hastings.edu. Melissa Crow, thank you so much for joining us this week on CounterSpin.

MC: Thank you for having me, Janine; I appreciate it.