In his immigration platform statement, then presidential candidate Joe Biden promised to “end Trump’s detrimental asylum policies,” and ensure “the dignity of migrants ... upholding their legal right to seek asylum.” Less than one year into his administration, President Biden has adopted as his own one of President Trump’s most contested, insidious, and indefensible immigration policies: Title 42 expulsions.
In September, despite a federal court finding the policy unlawful and ordering the administration to stop expelling families, the Biden administration chose to appeal—a decision the Biden administration took with the aim of continuing the Title 42 Trump era policy of effectively closing the Southern border to would-be asylum seekers. A federal circuit court allowed the administration to do so, in a one sentence decision.
Title 42 Expulsion Policy Is Based on 1944 Law
Where does this claimed authority come from? The Title 42 expulsion policy relies on a little known, and rarely used, 1944 public health statute to deny immigrants the right to seek protections they are entitled to under both domestic and international law. Trump first invoked Title 42 in March 2020, but using public health concerns as a baseless proxy for excluding noncitizens whom the government deems undesirable is not new.
Indeed, Central Americans, Haitians, and other migrants adversely impacted by Title 42 have been historically excluded in the name of public health. In the 1980s, the U.S. excluded Haitians from entry based on fears of the spread of HIV/AIDS. Following outcry from advocates, and litigation, in April 1985, then director of the CDC Dr. Walter Dowdle, admitted that “Haitians were the only risk group that were identified because of who they were rather than what they did.”
Invoking public health to exclude noncitizens—where public health does not require it—was indefensible then, and it is indefensible now.
Impact of Recent Litigation
In January, a coalition of immigrant advocacy and civil rights groups brought suit, challenging the lawfulness of the Title 42 policy, specifically as it regarded families with children.
In September, Judge Emmet G. Sullivan, of the U.S. District Court for the District of Columbia, found that the plaintiffs were likely to prevail on their claims and that migrants subject to Title 42 “face real threats of violence and persecution” and are deprived of their statutory right to seek asylum and related protection in the U.S.
Despite pressure to the contrary, the Biden administration immediately appealed, requesting that Sullivan’s decision be stayed. On Sept. 30, the U.S. Court of Appeals for the D.C. Circuit granted this request.
The result? Trump’s Title 42 policy remains in force, expelling families, children, and adults immediately from the U.S. without affording them their statutory right to seek protection. Arguments will proceed before the D.C. Circuit in January 2022. In the meantime, the Biden administration, with every expulsion, violates domestic and international legal obligations not to return asylum seekers to a place where their lives or freedom would be threatened.
Advocates are surprised by the relentlessness with which this administration has defended Title 42 expulsions. Indeed, even those within the administration have been so appalled that some have resigned in protest, including Harold Koh, a senior State Department adviser, and Daniel Foote, the U.S. special envoy for Haiti. On Oct. 16, advocates “walked out” of a virtual meeting with top Biden administration officials over Title 42 and the administration’s reinstatement of the Migrant Protection Protocols—also known as the “Remain in Mexico” policy.
It’s Not a Public Health Issue
The defense of the policy is, at best, bewildering. During the 2020 presidential campaign, a senior campaign adviser pledged that Biden, as president, “would look to public health officials for guidance on pandemic-related border closures” and simultaneously accused Trump of trying to “‘scapegoat’ immigrants with restrictions on legal immigration.”
But, Centers for Disease Control and Prevention officials have made clear that the order isn’t required for public health purposes despite public pressure to argue otherwise. And Dr. Anthony Fauci, head of the National Institute of Allergy and Infectious Diseases, has publicly called upon those blaming immigrants for Covid-19 to “face reality,” noting that the data did not bear this out.
The evidence shows that only 1.14% of asylum-seekers in Mexico tested positive for Covid-19, far lower than the positivity rates currently seen in the U.S. For that very small group of asylum seekers, we have the tools to treat and contain the illness.
What’s more, not only is Title 42 indefensible as a matter of public health, it also hasn’t proven an effective deterrence policy for continued migration. Time and time again, migration patterns have demonstrated that when someone is fleeing for their lives and the lives of their children, deterrence does not work.
Not only does the policy fail to disincentivize migration, but it’s coming at a political cost. Biden is facing severe criticism from immigration advocates and progressives, including a letter from more than 100 organizations signed in August, condemning Title 42. This issue is dividing the Democrats—with Sen. Chuck Schumer (D-N.Y.) calling for an end to Title 42 expulsions at a time when Democratic unity is needed in Congress.
When it comes to U.S. border policy, Biden wants us to believe that he is a departure from Trump. But so far, he has adopted as his own one of the very worst Trump-era policies.
Ultimately, the Biden administration will have to decide whether they want to side with immigration advocates, public health officials, and the U.N. High Commission for Refugees, who have all called for an end to Title 42, or whether appeasing a small group of 14 House Republicans is worth the devastating human cost of perpetuating an immoral and illegal policy.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
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Sarah Sherman-Stokes is clinical associate professor and associate director of the Immigrants’ Rights and Human Trafficking Program at Boston University School of Law. She is also the author of the article “Public Health and the Power to Exclude: Immigrant Expulsions at the Border.”
Lindsay M. Harris is professor and associate dean for Clinical and Experiential Programs at the University of the District of Columbia’s David A. Clarke School of Law. She directs the Immigration and Human Rights Clinic and is the author of the article “Asylum Under Attack: Restoring Asylum Protections in the United States.”