In 2020, Trump used the ongoing COVID-19 pandemic to invoke Title 42 – an existing public health law – to severely restrict migrants’ entry into the United States.

This means that Title 42 was legislation created in the past, but what exactly does it do or why was it created?

Title 42 is part of a public health emergency law enacted in 1944 called the Public Health Service Act. The law was enacted to prevent the spread of communicable diseases and allows health authorities to deny individuals entrance into the United States in order to prevent the introduction, transmission, and spread of communicable diseases from foreign countries into the United States.

On March 20, 2020, the Trump Administration used Title 42 to close the land borders with Canada and Mexico, restricting the entry of many immigrants fleeing their countries due to persecution. The Trump administration took this action even though top scientists at the CDC advised against it given there was no evidence that this would slow down the spread of the virus in the country. Subsequently, the U.S. saw rapid and widespread infection by COVID-19 despite the Title 42 immigration restriction.

In January of 2023, the Biden Administration announced that it would end the public health emergency associated with the COVID-19 pandemic. Enforcement of the immigration restrictions put in place under Title 42 ended May 11, 2023. In February of this year, the administration also announced a proposed rule “the Circumvention of Lawful Pathways” and opened the rule for a short 30-day period of public comment.

The proposed rule created a presumption of asylum ineligibility for individuals who (1) did not apply for and receive a formal denial of protection in a transit country and (2) entered between ports of entry at the southern border or entered at a port of entry without a previously scheduled appointment through the CBPOne mobile application, subject to extremely limited exceptions.

NCLR worked with a coalition of other immigration organizations to encourage the public and those who would be directly affected by the rule to submit comments asking the administration to change or rescind the proposed rule altogether. However, after the comments were closed and the rule was finalized there were little to no changes to the final rule that has become effective since May 11, 2023.

This rule has become known as the “asylum ban” as it makes nearly all asylum seekers seeking to enter through the land border ineligible for protection in the U.S. This rule infringes on a person’s human right to receive refuge under the 1967 Protocol to the Refugee Convention, which the U.S. has ratified.

Under the rule, the administration requires people who have suffered persecution to seek asylum in countries where there is no infrastructure for this type of migratory relief, and where local conditions put people in danger of harm or hinder people’s livelihoods. This forces people to wait on the Mexican side of the southern border for uncertain periods of time until they are able to get an asylum interview.  

In addition, the rule requires migrants to use the CBPOne app to schedule appointments, which many have found to be not fully accessible, routinely oversubscribed, and often glitchy. The app also currently does not allow LGBTQ immigrants to indicate that they are particularly vulnerable to violence while waiting at the border due to their sexual orientation or gender identity. In practice, the use of this app has limited who is able to get access to asylum at the border.

These policies have affected members of the LGBTQ community. The asylum ban will also continue to endanger the lives of tens of thousands of vulnerable people fleeing persecution around the world. This includes LGBTQ migrants, many of whom are also survivors of family violence, sexual violence, stalking, and violence from gangs or drug cartels. As they continue to face violence, discrimination, and harassment, members of the LGBTQ immigrant community are waiting in Mexico for an interview through the CBPOne App.

This new asylum ban will result in many LGBTQ immigrants with strong claims for asylum being sent back to countries where they run the risk of facing physical, verbal, and sexual violence – or even death.

The Biden administration has dismissed concerns regarding the implementation and negative outcomes of the ban for thousands of immigrants at the southern border, especially for those groups at high risk like LGBTQ migrants. The administration has fallen short in its commitment to protect LGBTQ people seeking refuge and protection in the United States.

That is why NCLR joined with East Bay Sanctuary Covenant, American Gateways, Central American Resource Center, Immigrant Defenders Law Center, and the Tahirih Justice Center as plaintiffs of a lawsuit against this ban. We are represented by the American Civil Liberties Union, ACLU of Northern California, Center for Gender & Refugee Studies, and National Immigrant Justice Center.

Throughout this lawsuit, Judge Jon Tigar of the U.S. District Court of the Northern District of California has blocked the Biden administration’s – “Circumvention of Lawful Pathways Rule” – new asylum ban, and this shall take effect in two weeks. In his ruling, the federal Judge referred to asylum laws passed by Congress with clear intent to establish protection in the U.S. for people that not able or willing to return to their native country due to past persecution or a well-founded fear of being persecuted in the future. Judge Tigar expressed that the Rule imposed additional conditions on asylum eligibilities inconsistent with asylum laws already set in place. Judge wrote in his ruling that:

“the Rule is contrary to law because it presumes ineligible for asylum noncitizens who enter between ports of entry, using a manner of entry that Congress expressly intended should not affect access to asylum. The Rule is also contrary to law because it presumes ineligible for asylum noncitizens who fail to apply for protection in a transit country, despite Congress’s clear intent that such a factor should only limit access to asylum where the transit country actually presents a safe option.”

As an organization committed to advancing the civil and human rights of all members of the LGBTQ community, this ruling is a victory in our efforts towards more fair asylum policies and accessibility for all people seeking refuge in the United States. However, this is not the end of the road, as it is likely that there could be an appeal from the Administration on this decision. 

Thus, NCLR condemns the actions that the Biden Administration has taken on this matter. We ask the Administration to stop upholding asylum policies that are callous and unlawful, and instead establish asylum efforts that are more inclusive, and humane for those seeking safety at the border, as it is a human right.