Ending Title 42 won’t cause immigration mayhem — It will restore order
In 2015, a Ghanaian man who goes by the initials M.A. and his gay friend were brutally assaulted by a vigilante group in Accra, Ghana. In Ghana, homosexuality is illegal and carries a prison sentence of up to three years. M.A. was beaten with sticks before escaping through a window. His friend was killed. Fearing the group would find and kill him, he fled to Ecuador and made his way to the U.S. border, where he requested asylum. After being detained for nine months, he was released on bond and lived with a childhood friend in New York while he waited for his case to make it through the legal system.
M.A. clearly faced persecution, but an immigration judge denied his claim. I took M.A.’s appeal to the Board of Immigration Appeals in 2016 as part of the Cornell Law School’s asylum appeals clinic. It took M.A. four years to win asylum in America, but at least he was given the chance to apply in the first place.
Since March 2020, approximately 900,000 people — including over 215,000 parents and children — have been denied the ability to request asylum at all. They’re casualties of Title 42, a pandemic-related policy that paused nearly all asylum proceedings at the border. Some people argue the policy is preventing an influx of migrants. In fact, numbers are up despite the policy, and our refusal to process most of them has led to chaotic and dangerous conditions.
The United States has successfully managed ebbs and flows of asylum seekers for decades. There’s a system in place to manage an influx — and regardless of how hard immigration lawyers like me fight for them to stay, many will lose their case and be deported. Even so, we must let people try. It’s not only the right thing to do, it’s also guaranteed under international and domestic law. We signed a 1967 protocol to the U.N. Refugee Convention to protect the rights of refugees, and we have adopted it and codified it into U.S. asylum law. Right now, we’re violating those obligations. The longer we do, the weaker American rule of law looks to our global partners.
We must immediately reinstate due process for asylum seekers. And once this happens, we must work to make the system more equitable and faster. For example, a recent rule that allows asylum officers of the U.S. Citizenship and Immigration Services to decide asylum cases on the merits rather than make them wait to see an immigration judge is a good first step. We should also hire more immigration judges to process cases more quickly. Right now, over 1.8 million cases are pending in immigration courts. In some immigration courts like Los Angeles and Houston, applicants must wait over three years to see a judge.
Here at Cornell, we started a new clinic for Afghans on temporary humanitarian parole who want to apply for asylum. One might assume that someone fleeing the brutal Taliban regime has a clear-cut case. We represent multiple Fulbright scholars who spoke out against the Taliban. They all have compelling cases and stacks of evidence to show that their lives are in grave danger. Still, we might lose these cases.
Asylum is often called “refugee roulette” because winning depends on which asylum officer or immigration judge you get, or your country of origin. For example, your chances of winning asylum are much higher if you’re from China than from Mexico.
Still, the fact remains that under Title 42, most people who arrive at our border fleeing violence and persecution can’t even apply for safe haven. At the urging of more than 20 states, a federal judge has temporarily stopped the Biden administration from ending Title 42. States should not turn a public health and humanitarian issue into a political football. We have the capacity as a country to move asylum cases through the legal system in an orderly way — and a moral and legal imperative to do so.
Stephen Yale-Loehr is a professor of Immigration Law Practice at Cornell Law School and of counsel at Miller Mayer LLP in Ithaca, N.Y.