The Biden administration has announced the end of a Trump-era immigration policy known as Title 42, which effectively shut down the U.S. asylum system at the southern border. The decision was widely celebrated by immigration advocates, who say the restrictions harmed vulnerable groups of asylum seekers, including LGBTQ2S+ people fleeing persecution in their countries of origin.
In an April 1 order, the Center for Disease Control and Prevention (CDC) said Title 42’s repeal will go into effect on May 23 in order to give the Department of Homeland Security (DHS) “time to implement appropriate COVID-19 mitigation protocols.” These include preparing temporary processing facilities to account for an increase in people entering the country, as well as deploying additional officers to the U.S. southern border, according to CNN.
Title 42 of the United States Code allows for the government to take emergency actions in order to prevent the “introduction of communicable diseases,” such as COVID-19. While the policy has been on the books for over a century, it’s rarely enforced, the Trump administration invoked the restrictions just days after pandemic lockdowns began in March 2020.
The decision to implement Title 42 was reportedly spearheaded by former White House advisor Stephen Miller.
Despite being a hallmark of Trump-era immigration policy, Title 42 was not repealed when President Joe Biden took office in January 2020. The policy has been invoked an estimated 1.7 million times to prevent asylum seekers from entering the U.S., as The Hill reports. (Those numbers include repeat attempts to cross the border.)
The Biden administration’s failure to revoke Title 42 has been met with significant backlash from immigration advocates and members of the president’s own party, some of whom called the policy ”cruel” and “draconian.” Republican legislators, in contrast, have argued heavily in favor of maintaining the order—despite their fervent opposition to virtually any other COVID-19 regulations.
Aaron C. Morris, executive director of the LGBTQ2S+ advocacy group Immigration Equality, called Title 42 “devastating” and “deeply immoral.” “During the worst parts of the pandemic, I think it would have been difficult for any administration to justify its usage—just in the broad based way that it was used,” he tells Xtra.
Using Title 42 as a blanket exclusion against asylum seekers at the southern border had been floated in conservative circles for years prior to the pandemic, according to Morris. He claims that COVID-19 provided a pretext to move forward with that idea. “When the pandemic began, they jumped on that opportunity,” he says. “So no person—however meritorious their claim, however dangerous it was for them to be returned or turned away at the border—was given their day in court.”
Title 42 has not gone unchallenged since its implementation. A series of lawsuits from LGBTQ2S+ and civil rights groups have produced conflicting rulings on its merits: Some judges argued for expanding Title 42, while others claimed the policy is discriminatory.
But even after Title 42 was lifted last week, the White House noted that most who cross the border will not be allowed to stay in the U.S., unless they can “establish a legal basis to remain in the United States.” “As a reminder, economic need and flight from generalized violence is not a basis for asylum, but rather asylum is for those with a well-founded fear of persecution on a protected ground,” said White House communications director Kate Bedingfield during a March 31 press briefing.
Protected categories under U.S. asylum laws include race, religion, nationality and “membership in a particular social group or political opinion.” Generally, LGBTQ+ people and people living with HIV can claim protected status under the “social group” category, although in some cases there can be overlap between categories.
With the repeal of Title 42, advocates say LGBTQ2S+ asylum seekers will once again be afforded the chance to actually argue their cases before a court.
While this is a definitive step in the right direction, Morris says more work must be done to improve U.S. immigration policy. He points to the current spending on detention facilities—the 2022 budget includes at least $1.8 billion for immigrant detention—and the ongoing detainment of LGBTQ2S+ asylum seekers as areas of concern. “For LGBTQ people, and particularly people living with HIV, those facilities can be close to persecution,” Morris says.
LGBTQ2S+ asylum seekers who are detained often face harsh conditions in immigration detention facilities, where they are often denied necessary healthcare including hormones or life-saving medications for people living with HIV.
Trans people held in detention facilities are especially vulnerable to abuses from both corrections officers and peers. A study from the left-leaning think tank Center for American Progress (CAP) found that LGBTQ2S+ immigrants were 97 times more likely to sexually assaulted than the general population when in Immigration and Customs Enforcement (ICE) custody.
In particular, trans women have historically suffered elevated rates of sexual and physical abuse, as well as lengthy stays in solitary confinement, with the latter allegedly for their own protection. In one widely publicized case, Roxana Hernández, a trans woman who came to the U.S. in 2018, died from what were reportedly HIV-related complications after five days in the custody of ICE. LGBTQ2S+ advocates have alleged medical neglect in her case.
Biden’s campaign platform around LGBTQ2S+ issues included a commitment to investing in alternatives to the current immigration system, although it’s unclear if any steps have been taken towards making this promise a reality.
Still, Morris notes that it’s a good indicator that Biden is following through on campaign promises to introduce reforms to the asylum and immigration system. “I think that there is an understanding that America has certain obligations to lead in human rights,” he says. “And this is a step toward being that leader again.”
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