Title 42 Gets 86'd | Crooked Media
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May 12, 2023
What A Day
Title 42 Gets 86'd

In This Episode

  • Today marks the official end of Title 42, the Trump-era border policy that allowed U.S. border officials to expel asylum-seekers on public health grounds. We talk to Dara Lind, senior fellow at the American Immigration Council, about the end of the policy, and what the restrictions that the Biden administration is putting in its place.
  • Republican-controlled state houses across the country continue to push anti-LGBTQ+ legislation, including Montana, where lawmakers have banned gender affirming care for trans youth, and also voted to censure Representative Zooey Zephyr. Erin Reed, an independent journalist and activist, joins us to talk about her work to make the country a better – and safer – place for transgender people.
  • And in headlines: writer E. Jean Carroll is considering suing Donald Trump again, Daniel Penny has been charged with second-degree manslaughter in the chokehold killing of Jordan Neely, and the FDA has finally paved the way to allow more gay and bisexual men to donate blood.


Show Notes:


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Abdul El-Sayed: It’s Friday, May 12th. I’m Abdul El-Sayed. 


Juanita Tolliver: And I’m Juanita Tolliver and this is What A Day which is about to give you an exclusive reveal of Abdul’s tried and tested skincare routine. Fire away, sir. 


Abdul El-Sayed: Juanita, are you ready for this? 


Juanita Tolliver: Let’s go. 


Abdul El-Sayed: Be from Egypt. 


Juanita Tolliver: Really? 


Abdul El-Sayed: But seriously, y’all you thought I was going to give the secret away? [laughing]


Juanita Tolliver: Of course I did. You’re giving me though, maybe he’s born with it. Right. Like, that’s the vibes. [laugh] 


Abdul El-Sayed: It turns out I probably was. So there’s that. [laughter] [music break] On today’s show, writer E. Jean Carroll says she may sue Donald Trump again. Plus, we’ll check in with journalist Erin Reed about her work to make the U.S. a better and safer place for transgender folks. 


Juanita Tolliver: But first, today marks the beginning of a post Title 42 border as the Trump era immigration policy, cloaked as a public health response at the height of the pandemic, has officially ended. Title 42 allowed the government to expel migrants without giving them a chance to seek asylum and essentially delayed the processing of asylum applications since 2020. The end of the policy comes with an anticipated surge at the border, as well as new policies and asylum restrictions from the Biden administration that bear an awful resemblance to what the last guy did. And I don’t say that lightly. I say that in the context of the reality that our immigration system is beyond broken and Congress has refused to act for decades. And now here we are facing another cycle of a surge with no long term solutions. 


Abdul El-Sayed: But this one wears aviators and eats ice cream. So there’s that. 


Juanita Tolliver: Oh, chile. Oh, come on. [laugh] But you’re not wrong. According to projections by the Department of Homeland Security, more than 10,000 people are expected to cross the border in the next few days. And cities and counties in Texas and Arizona are issuing emergency and disaster declarations. And this is where I turn to Dara Lind, senior fellow at the American Immigration Council, to break it all down. Dara has been writing about immigration issues for about a decade, and she has even outlined the 15 not so easy steps for migrants to seek asylum under the new policies. I started by asking Dara to outline the impact that Title 42 has had over the past three years since it was invoked by Trump in 2020. Take a listen. 


Dara Lind: So the reason we call it Title 42 is because it is based in Title 42 of the U.S. Code, which is not where you find most immigration laws. It’s this obscure public health law that was enacted decades and decades before existing immigration laws that Donald Trump and his administration dredged up out of the law basement. 


Juanita Tolliver: Chile. 


Dara Lind: –to in the wake of the COVID 19 pandemic, quote unquote, “prevent the introduction of COVID 19,” which was, of course, already circulating. By preventing the entry of unauthorized migrants. So in practice, what this meant was that under immigration law, if you come without papers, you are subject to rapid deportation if you’re immediately caught, unless you ask for asylum. The way that the Donald Trump administration and then the Biden administration implemented Title 42 was they could instead decide, No, we can’t hear you. You know, you can’t ask for asylum. Instead, you would get expelled to Mexico in a matter of hours, usually to Mexico and some cases to people’s home countries. But the result of this is that lots and lots of people got summarily expelled. 


Juanita Tolliver: Right. And I just want to remind our listeners that seeking asylum is individual’s legal right. Like, right? Like you can do this legally. 


Dara Lind: Yes. It is very clear in U.S. law that even if you enter the U.S. illegally, it is still a legal right to seek asylum. And that is the kind of hard and fast standard that the Trump administration really struggled with as it tried to restrict ability to seek asylum. And the Biden administration has, like, worked its way around with its new policies. 


Juanita Tolliver: Oh, let’s talk about that, though, because now that the border policy is officially sunsetting, you mentioned the Biden administration is already rolling out new restrictions in anticipation of a surge of migrants crossing into the U.S. Now online, I saw a conversation you were having where the new restrictions went from 12 not at all easy steps to now 15. So can you break down the new rules and outline what they mean for migrants who are seeking asylum? 


Dara Lind: The structure of this is really convoluted, right? Like I shorthand it as a transit ban, but like it’s not really a ban. What it is, is a series of like very, very high bars that you have to clear. 


Juanita Tolliver: Ugh. 


Dara Lind: So if you are currently in Mexico without authorization or you’ve crossed into Mexico or Panama without an authorization and you cross into the U.S., in theory, you should be able to just present yourself at a port of entry and say, Hey, I’m seeking asylum. And that’s not even the misdemeanor of illegal entry. Um. In practice, access to ports of entry is severely limited. And really, the only way to guarantee that you’re going to get seen for asylum is to make an appointment on the CBP One app. 


Juanita Tolliver: Hold up, hold up, hold up. I’m fleeing violence and danger in my home country. But you expect me to download an app and fill out some paperwork. 


Dara Lind: Yeah. For the last few months, it’s been used to request exemptions from Title 42 to kind of, you know, if you’re in danger in Mexico. And people called it asylum Ticketmaster. 


Juanita Tolliver: Yikes. 


Dara Lind: They’ve changed the way that it works now. So you have a day to register and then you log in the next day to find out if you got an appointment. And in between, they’re trying to make sure that the people who have been registered and waiting the longest are preferred. But it is essentially a lottery. So, like you stay, and you keep playing the asylum lottery or you cross into the U.S. between ports of entry and hope you don’t get caught. Because if you get caught, then you can’t actually it count against you for seeking asylum because this new Biden regulation doesn’t apply at ports of entry. It only applies if you’re caught by Border Patrol or if you otherwise enter without inspection is the technical term. And if that happens, you are at the initial screening interview phase. Expected to clarify whether you have already applied for and and been denied asylum in another country that you came through before coming to the U.S. If you don’t have that, then your standard for being allowed to even stay in the U.S. and see a judge rises dramatically. While if you can’t clear that elevated bar, you do get an opportunity to appeal it to a judge like the judge is applying the same much higher bar. So that’s less likely. Then even if you can clear that higher bar, you then have to go through the whole thing through a judge again. 


Juanita Tolliver: Oh my gosh. 


Dara Lind: After you file your asylum application, you have to demonstrate to the judge not only that you were allowed to stay and fill out the application, but that you are eligible for asylum and not having, you know, applied for asylum in another country first and been denied makes you presumptively ineligible. 


Juanita Tolliver: This is heartbreaking. Like, I can’t even imagine doing this many steps. Let’s be real, for cooking a meal, no less trying to seek survival and safety. And to hear these steps, it makes it so important that we talk about the human impact of these policies. Like, do you have any sense of how migrants are feeling or preparing for these new regulations? 


Dara Lind: I mean, it’s really, really hard to communicate in advance regulatory changes, like it’s hard enough just to get accurate information out there about what’s going on. 


Juanita Tolliver: Right. 


Dara Lind: I’m going to be interested to see how this gets applied and communicated in the first few days. I think that it’s likely that especially because the Biden administration has said that it is not going to keep families in ICE detention. It is instead going to release them. And so they will be subject to this new regulation, but they won’t be detained and quickly deported. So I do wonder how quickly it’s going to get out there that the bar has gotten much higher. 


Juanita Tolliver: Yeah, and speaking of deportations, also happening with the end of Title 42 is this new fast track approach known as expedited removal, which means migrants will face more severe consequences if they enter the U.S. unauthorized. And honestly, when I hear fast track, I hear alarm bells because I’m concerned. Like, what do you make of this approach and what penalties would migrants face? 


Dara Lind: So expedited removal, it’s been on the books for decades and it’s been pretty broadly– 


Juanita Tolliver: Okay. 


Dara Lind: –in use. This is one of those things where the Biden administration has portrayed itself as being extra tough by saying, oh, we’re going back to Title 8. It’s like, yes, Title 8 is standard immigration law. But like expedited removal says that if you’ve recently entered the United States and like the statute actually allows it to be applied much more broadly than they are applying it now. And you’re caught by Border Patrol, you don’t have a right to a hearing before a judge. That’s why people who present themselves to Border Patrol like have to say that they’re seeking asylum or ask for asylum or otherwise indicate that they’re being persecuted because that’s the only form of like guaranteed due process that you get. And that’s why that screening interview matters so much, because the screening interview is what determines if you should be taken out of this fast track and instead brought before an immigration judge to make your asylum case. Something that I think is really important to note about this is that it’s also in addition to this fast track deportation process, it’s also fast tracking the asylum screening interviews. Those are now happening– 


Juanita Tolliver: Okay. 


Dara Lind: –even before people get out of Border Patrol custody. So like a matter of a couple of days after they cross and they’re in phone booths with the asylum officer on the other end. So it’s not super clear how you’re going to like present evidence. 


Juanita Tolliver: Right. 


Dara Lind: The thing about Border Patrol custody, in addition to them being, you know, they’re not designed to hold people for more than a few days. And so there really are concerns about conditions. The other problem is lawyers and the public and members of Congress, etc., don’t get access to them. There’s just so little transparency. 


Juanita Tolliver: Right. Because it sounds like a black box. 


Dara Lind: Right. So it’s a black box where this totally new regulation is being implemented that like only just got finalized. So it’s not like there’s been extensive training on it and where if you get denied, then you get deported. So it’s going to be hard to track people down and say, hey, did the US government treat you– 


Juanita Tolliver: Right. 


Dara Lind: –fairly? 


Juanita Tolliver: Right. 


Dara Lind: So I just worry that this is like a perfect storm. We knew it was a mess when the Trump administration did something similar to this phone booth thing in 2019. We didn’t get like official government confirmation of that for two years because that’s how long it took for the inspector general report– 


Juanita Tolliver: Too long–


Dara Lind: –to come out. 


Juanita Tolliver: –after the fact. And and that’s what’s truly concerning. 


Dara Lind: Right. So I’m just I’m very concerned that this is going to happen and that we’re not going to see it. 


Juanita Tolliver: That was my conversation with Dara Lind, senior fellow at the American Immigration Council. And I honestly appreciate how real she was about the human impact of these policies, but also the black box in which they’re operating because at the end of the day, I, like so many others, just want people seeking asylum and people who are migrants to be treated with humanity first. I don’t think that’s too much to ask. 


Abdul El-Sayed: I don’t think so either. 


Juanita Tolliver: Right. More on all of this very soon. But that’s the latest for now. [music break]. 


Abdul El-Sayed: Let’s get to some headlines. 


[sung] Headlines. 


Juanita Tolliver: Sunday marks the one year anniversary of the Tops supermarket shooting in Buffalo, New York, where a white supremacist gunman killed ten Black people and injured three others. Yesterday, New York Attorney General Letitia James filed a lawsuit against the gunmaker Mean Arms, which sells an accessory that can lock how much ammo can be loaded into a semi-automatic weapon. James argues that even though the company sells the device, it gives detailed instructions to users on how to disable it, which in turn allows gun owners to get around New York’s law that bans high capacity magazines. That very device was on the weapon that the Buffalo shooter used to carry out the attack, but it was not engaged. The suit seeks to stop Mean Arms from doing business in New York and also calls for the company to pay civil penalties and damages. 


Abdul El-Sayed: I can’t believe that was a year ago. But then– 


Juanita Tolliver: Right. 


Abdul El-Sayed: –it seems like very little has changed in that year. Because the man who put Jordan Neely in a fatal chokehold while on the New York City subway has been charged with second degree manslaughter. As you remember, video footage of the man putting Neely in a headlock circulated across social media earlier this month, leading to outrage and protests demanding justice. The video showed the man, 24 year old Daniel Penny, who is white, holding Neely down on the floor of a subway car until Neely passed out. Neely was said to have been yelling and expressing thoughts of self-harm but did not physically attack anyone. The video also shows Neely being restrained by two others. Neely was an unhoused Black man who was known for his impression of the late singer Michael Jackson. Following the incident, Penny was initially questioned and released shortly after. He’s expected to be arraigned in a Manhattan criminal court as soon as today. 


Juanita Tolliver: Let me just say that we would not be here if it wasn’t for the public outcry and the public protests. So if you made your voice heard. Thank you. Because honestly, this is what should have happened the day that Neely was killed. 


Abdul El-Sayed: That’s right. 


Juanita Tolliver: It’s only been a few days since writer E. Jean Carroll won her civil suit against Donald Trump for sexual abuse and defamation, but she’s now considering whether to sue him again. Her attorney said yesterday that she’s weighing a third lawsuit against Trump after he continued to make disparaging comments about her during what was, in reality, a CNN sponsored campaign rally on Wednesday night as part of his 2024 presidential campaign. Carroll, for her part, told The New York Times yesterday that she found Trump’s comments, quote, “stupid, disgusting and vile” and said she’d been, quote, “insulted by better people.” I mean, I just want E. Jean Carroll to have peace. She literally can’t even savor the reality that she’s got her name back and found Trump liable of so many harmful things earlier this week, only to now be faced with even more slander. It’s ridiculous. 


Abdul El-Sayed: It is. But even if she can’t have her peace, I hope she gets more of Donald Trump’s money. 


Juanita Tolliver: I mean, ka ching! 


Abdul El-Sayed: If the thought of needles and blood make you a little squeamish. You might want to skip ahead. But don’t worry. This is good news. The FDA has finally paved the way to allow more gay and bisexual men to donate blood. The new guidelines roll back a decades long policy that came during the height of the AIDS crisis in the 1980s, which up until recently prohibited men who have sex with men from giving blood. The policy was recently revised to allow them to give blood, but only if they are in monogamous relationships and if they abstain from sex for at least three months. Moving forward, potential donors who identify as gay or bisexual can forgo the abstinence requirement, and all donors will have to fill out a questionnaire about their own individual risk for HIV. The shift follows similar guidelines already in place in the UK and Canada. This could both increase the blood supply and maintain its safety, which is important for anyone who needs a blood transfusion. So if you’re considering whether or not to give blood. Trust us on this. You’re doing a lot of good for a few moments of discomfort and they give you a cookie afterwards. 


Juanita Tolliver: Look, all I got to say about this one is finally, it’s about damn time, because that rule, that guideline was ridiculous. 


Abdul El-Sayed: Yeah. Medical discrimination, not good. 


Juanita Tolliver: That part. 


Abdul El-Sayed: And those are the headlines. We’ll be back after some ads. 




Juanita Tolliver: Montana, Montana, Montana. A state that just can’t do right, especially when it comes to LGBTQ+ people. Recently on the show, we covered the anti-trans bill that banned gender affirming care for trans people under 18 years old. The harmful votes to censure Representative Zooey Zephyr, as well as the hateful effort to keep her from working even in the hallway outside of the chamber at the state house. To break down the anti-LGBTQ+ legislative push we’re seeing in Republican controlled state houses across the country. I got to sit down with Erin Reed, an independent journalist, activist, and she also happens to be Representative Zephyr’s fiancé. Erin is one of, if not the most recognizable trans reporters out there who has been tirelessly covering anti-LGBTQ+ legislation and policies across the country for three years now. I started by taking a moment to celebrate pure queer joy by asking Erin about her surprise proposal and how it feels to be a brand new fiancé. Take a listen, y’all. 


Erin Reed: Amazing, amazing, amazing. I could not do everything that I do without her support. And we have been through thick and thin together throughout all of this legislative cycle and everything. And it’s just it was such a beautiful moment for her, for me, for us, and for all the people that were there to celebrate. 


Juanita Tolliver: And when I tell you I got goose bumps watching your video, I might have watched it at least five times. Don’t judge me. I’m not a weirdo. I just love love. Right? And it was exuding from that moment. And I want to know what was going through your mind when Zooey called you to the front of the room? Were you expecting this? 


Erin Reed: Yeah so we had talked about how the trans and non-binary representatives would stand in front. So that’s SJ Howell, as well as my partner Zephyr. And and how then they would like call their partners on. And so like I was expecting to be called on–


Juanita Tolliver: Oh so it was planned.


Erin Reed: –and to like beside her. 


Juanita Tolliver: Mmm. 


Erin Reed: Yeah yeah so like I was expecting to get called on to stand beside her And then Howell actually representative Howell spoke first and called their partner up. They kissed and so then Zooey got up, spoke as well, delivered an amazing speech, called me up and I’m like, okay, good. She’s about to kiss me. She turns around and instead of kissing me, she drops to one knee. And like, I just I remember, like, everybody’s screaming. It sounded like just this like a jet engine. It was just so loud and [laughter] I was not expecting it. My heart was beating really quickly. I had a huge smile on my face. We kissed and she stood up and like I whispered into her ear that she had tricked me because it was so funny. [Juanita squeals] We were [laugh] she she tricked me though it was in such a great way, though. 


Juanita Tolliver: The best trick ever. And I hope you felt the love. But that beautiful moment aside. We’re talking to you after a pretty insane few weeks for the two of you. We’ve been following the story of Representative Zephyr’s censure in the Montana state legislature, as well as her lawsuit against the state. The anti-trans bill that banned gender affirming care for people under 18 years old and the attempted SWAT on your home, like to me, this is screaming extremism. But why should everyone, especially people outside of Montana, be concerned about Rep Zephyr’s censure, and the anti-trans legislation they passed in the state? 


Erin Reed: Absolutely. So I think that Montana and what my partner did there is emblematic of what the GOP has been doing all year long. You know, they’ve focused on trans individuals. They’ve passed anti-trans laws that take away your right to medical care. And Zooey, she got up and she spoke. She didn’t yell, she didn’t scream. She spoke very poignantly about the anti-trans laws. Instead of just passing it, they decided to silence her. To kick her off the house floor. To send her into the hallways where she continued to work. Why this is so important is that this is not the first time that they’ve done this, and it’s not the only time that they’ve done it. They’re actually weaponizing these kind of tactics more and more. This is happening in state houses across the country. In fact, as we speak, I am writing a story about how in Missouri they just had a gender affirming care ban bill in Missouri, and they only gave 15 minutes for Democrats to talk. And then whenever it came time for them to acknowledge Republicans to speak, there was a gay Republican who was against the bill who stood and he kept his hand up the entire time. They refused to acknowledge him because the Republican Party didn’t want to acknowledge their own. Somebody that was going to speak against the bill. So like this idea that we can silence elected officials just because they’re talking about LGBTQ policy, it’s concerning. And this is going to spread like this is going to continue. 


Juanita Tolliver: Right. It’s coming to a state house near you if it hasn’t already. And so we’ve talked about a lot of the downers, the negative reality we’re facing. But there are some bright spots, including your newsletter, Erin in the morning, because you’re giving people what they need. You’re giving the breakdown of anti-trans bills moving through state legislatures nationwide, but also a map of where trans people can get quality care. And I know you have a full network of support that helps you keep up with the hundreds of updates daily out there. But how would you describe the method to the madness of putting together these maps and updates, but also the moment you realized how valuable these assets are to other people? 


Erin Reed: So I about four years ago I put together a hormone therapy access map, so this is essentially a way that trans people can look and find a clinic near them that provides the care that transgender people need. And I did this because four years ago, whenever I had first transitioned, I remember having to drive six hours roundtrip to get my care. 


Juanita Tolliver: Six hours? 


Erin Reed: Yeah. Yeah. And I’m in the D.C. area. There were clinics in the D.C. area, but nobody knew about them like they were word of mouth. And so what I did was I created a map that essentially showed where all of these clinics were. And as soon as I released it, I started getting trans people in public, just poured in information for me. They said, this clinic isn’t on your map. This clinic right here, the person is a little gatekeepey. You might want to add a note there. And ever since then, I’ve been essentially mapping out all of these gender clinics and allowing people to see where they can get the care. It’s one thing to know that you’re trans, but then like to try to manage all the health care options. But it’s another thing. Whenever you can like click on a map and say, oh, wait, there’s a clinic 10 minutes from my house, like I can actually do this. Access to health care is critical. And I know that as a Black woman who grew up poor. So if the entry point is not clear, it’s another set of barriers to even get what you need. 


Erin Reed: Exactly. And that map’s been viewed millions of times. What I do now is I run something called the legislative risk assessment map for trans people. What it does is it takes all of the laws in the United States and all of the ways in which people have been targeting trans people in these states. And I assess the risk that, like really bad legislation is going to pass in each state. I color code them, everything from the worst anti-trans laws that are active right now to the places that have extremely protective laws. And people have used this. 


Juanita Tolliver: I’m so glad we got a chance to talk about some of the bright spots because it’s not all gloom and doom. And Erin, you’re doing this hard work, but you’re also wading through a lot of hate and attacks on your own community. And I can only imagine how exhausting and heartbreaking that is day in, day out. So I got to know at a personal level, how are you protecting yourself, but also what’s fueling your joy? Of course, in addition to Zooey. 


Erin Reed: I think that right now what keeps me going throughout all the hard times, all of the difficult bills that I’ve got to cover, all of the words that are said about us is how strongly Gen Z has come out in support of trans people. And like the energy that I’m seeing from younger queer people and allies, I’m seeing school walkouts, I’m seeing these amazing trans day visibility marches that were held all over the United States. It was the biggest day of marches that I’ve ever seen. And then lastly, on a personal level, it’s stories of individual queer people that really give me joy. So I’ll give you a really good example. I was on Twitter one day and I got a message from a young trans girl, 17 years old. She goes to a school in southern Louisiana only 20 minutes from where I grew up, because I’m from Louisiana myself. And as a young queer kid, it was hard. I was heavily bullied and harassed and abused by my fellow students. So she messaged me and she said, Hey, Erin, I just wanted to let you know I’m a young trans girl. I go to this school in Louisiana and I was just nominated to the homecoming court. 


Juanita Tolliver: [squeals] I love that. 


Erin Reed: I cried. I cried because like– 


Juanita Tolliver: Oh! 


Erin Reed: To know that there was somebody where I grew up that was not only accepted but celebrated and like they put it on the back of her car with her dad– 


Juanita Tolliver: I love this! 


Erin Reed: –and drove her around the stadium. Like waved at everybody. That’s how you change things. That is how change happens. And that’s what gives me hope. 


Juanita Tolliver: That was my conversation with Erin Reed, an independent journalist and activist. And when I tell you, I had goose bumps as we wrapped up that interview, I am not exaggerating. And you better believe we’ll have her back on the show soon. [music break]. 




Abdul El-Sayed: Well, that’s all for today. If you like the show, make sure you subscribe. Leave a review, donate some blood, and tell your friends to listen. 


Juanita Tolliver: And if you’re into reading and not just Erin Reed’s newsletter like me, What A Day is also a nightly newsletter. Check it out and subscribe at Crooked.com/subscribe. I’m Juanita Tolliver. 


Abdul El-Sayed: I’m Abdul El-Sayed. 


[spoken together] And don’t forget to hydrate. 


Juanita Tolliver: I mean, that’s the key to your skin. I know it. I know it for a fact. 


Abdul El-Sayed: It is. Egypt’s kind of a desert, so you drink a lot of water so it comes out in your pores. It’s truly a whole thing. 


Juanita Tolliver: Bless. You and Gabrielle Union. Hydration game on lock. I’m convinced. 


Abdul El-Sayed: Absolutely. [laughter] I like to think of myself as being Gabrielle Union. Just uh [laughter] not nearly as cool. [laughter] 


Juanita Tolliver: Bless. [laughing]


Abdul El-Sayed: Just I’m a substitute podcast host. [laughing] [music break]. 


Juanita Tolliver: What A Day is a production of Crooked Media. It’s recorded and mixed by Bill Lancz. Our show’s producer is Itxy Quintanilla, and Raven Yamamoto is our associate producer. Jocey Coffman is our head writer and our senior producer is Lita Martinez. Our theme music is by Colin Gilliard and Kashaka.