Felix Marquez/AP Photo
A Haitian migrant bathes in the waters of the Rio Grande in Ciudad Acuna, Mexico, across from Del Rio, Texas.
For nearly eight months, President Biden has defended a key immigration policy that denies asylum seekers their international rights and violates their humanity. The president has repeatedly reimposed Title 42, a public-health authority invoked in March 2020 by the Centers for Disease Control and Prevention (CDC) that allows the government to expel asylum seekers and immigrants alike without a hearing. It’s no longer credible to call the policy a Trump holdover.
To date, the policy has affected hundreds of thousands of would-be migrants and asylum seekers. Migrants and asylum seekers have congregated at the Mexican side of the border, and have attempted to cross on multiple occasions, since an “expulsion” has no bearing on someone’s record. In August, 25 percent of all crossings were repeats. These repeat “encounters,” as Border Patrol calls its apprehensions of migrants, have given Republicans easy ammunition to hammer the administration for high numbers of crossings and an out-of-control border.
Eight months ago, when I last wrote about Title 42, there was an expectation among some advocates that Title 42 would soon be rolled back. As it has endured, that expectation has become impossible to rationalize, leading to more aggressive, persistent demands.
In a highly unusual move, the U.N. Refugee Agency publicly criticized the U.S. for its continued use of Title 42 in May. In July, Physicians for Human Rights released a report detailing the policy’s harm. Human Rights First released another report in August documenting more than 6,000 instances of abuse and persecution migrants and asylum seekers experienced after being expelled under Title 42—just since Biden took office. Yet this advocacy has so far been met with silence. Several public-health experts told the Prospect that CDC officials refuse to even answer their emails about Title 42.
In a highly unusual move, the U.N. Refugee Agency publicly criticized the U.S. for its continued use of Title 42 in May.
In recent weeks, opposition has grown, fueled in part by the horrific abuse of Haitian migrants and asylum seekers by white American Border Patrol agents. The U.S. special envoy to Haiti resigned over the treatment of Haitians at the border. Harold Koh, a senior adviser at the State Department, resigned after circulating a memo decrying the administration’s use of Title 42. Koh wrote that it is not only illegal and violates the rights of asylum seekers, but that it is “not worthy of this Administration that I so strongly support.”
Last week, the Lowenstein Project at Yale Law School submitted an emergency petition to the Inter-American Commission on Human Rights (IACHR) on behalf of 31 asylum seekers affected by Title 42 and several human rights groups, including Human Rights First, Al Otro Lado, and Haitian Bridge Alliance. The petitioners, including a former president of IACHR, are demanding Title 42’s end and requesting precautionary measures, which are “protection mechanism[s]” for one or more people in danger of harm.
Worse are the ways in which Title 42 policy has played into the hands of criminal gangs. When Biden took office, the administration made exceptions to Title 42 for unaccompanied children, but not for families with children. Advocates say the administration has been expelling these families directly into the hands of cartels or to their countries of origin, where they face persecution.
Lee Gelernt, lead lawyer for the American Civil Liberties Union’s Title 42 challenge, said evidence the organization submitted in trial court indicated that 20 percent to 40 percent of families are kidnapped by cartels.
Last month, a federal judge blocked the administration from expelling families with children under Title 42. But an appellate court overturned the stay, allowing the administration to continue deporting families without a court hearing or access to the asylum system until a hearing on the merits, scheduled for January.
“The briefs from the Biden and Trump administrations are literally identical,” said Gelernt.
The administration doesn’t need to wait until January; Biden could reverse the policy today. Instead, the CDC released a memo on October 2 concluding that the Title 42 policy is still “necessary,” after a 60-day review. The agency reassessed the order, pointing to “congregate settings” at ports of entry, “the continued threat from the Delta variant, and the availability of testing, vaccination, and other mitigation measures.” With the exception of delta, the CDC controls the variables affecting transmission and has shown in other areas, such as the handling of Afghan refugees, that the government can implement such measures effectively.
The CDC did not answer questions about the policy rationale or a timeline for its end, instead deferring to its October 2 statement.
Human Rights First’s refugee protection program director Eleanor Acer pointed to the “absurdities” of the memo: “CBP holds asylum seekers for days in congregate areas IN ORDER TO expel them under Title 42,” she wrote in a tweet.
The expulsion policies at the border are now paired with increasing deportation flights. Tom Cartwright, a volunteer who tracks ICE flights for Witness at the Border, said September was “mind-numbing.” The month saw 766 flights, the highest number of ICE flights since he began tracking them two years ago; the prior record was the previous month. Of these September flights, 193 were removal flights, or deportations, twice the number of the month prior.
Cartwright says transparency is no better under Biden than Trump. “Nothing is different about how people are treated,” he added. “People are still shackled all the way.”
From September 19 through October 4, there were 66 flights to Haiti, deporting more than 7,000 people. There were more flights to Haiti during this time than to any other country. Cartwright added that Title 42 has also increased flights to Guatemala. Before August, there were an average of three to five flights per month to Guatemala. In August, it grew to ten flights, and in September, 34 flights. It’s the difference between dozens and hundreds of people.
“I can just sum it up in three words: business as usual,” Cartwright said. “From what I’m seeing, literally nothing has changed because Title 42 is still in effect.”
PUBLIC-HEALTH EXPERTS, immigrant rights’ advocates, and human rights activists who spoke to me repeatedly emphasized that the public-health rationale for Title 42 is bogus. “It’s clearly something that is politically expedient and I think that’s dangerous,” said Michele Heisler, medical director at Physicians for Human Rights.
Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, said on CNN that Title 42 was not a major factor in the spread of the pandemic. “My feeling has always been that focusing on immigrants, expelling them … is not the solution to an outbreak,” he said. “Certainly immigrants can get infected, but they’re not the driving force of this, let’s face reality here.”
It’s not just that the Title 42 policy does nothing to stem the spread of COVID-19; it also sends immigrants and asylum seekers back to danger, the opposite of public health’s goals. Asylum seekers returned to a country experiencing devastating political unrest such as in Haiti or the twin hurricanes that struck Central America could be killed. Known as “refoulement”—returning asylum seekers to where they are at profound risk—it’s illegal under international law. Paul Spiegel, director of the Johns Hopkins Center for Humanitarian Health, said he already sees how the policy is hurting the CDC’s standing in the global public-health community.
“This is not a public-health issue, it’s a lack of immigration policy and I think we know that, and we can’t let them keep on,” he said.
“How can we expect to trust our science, our public health, our statement that vaccines are well tested … once you start using public health and medical arguments for the sake of political expedience?” asked Michele Heisler of Physicians for Human Rights.
It’s not just that the Title 42 policy does nothing to stem the spread of COVID-19; it also sends immigrants and asylum seekers back to danger.
When confronted with criticism about Title 42, the administration often points to the sweeping immigration reform bill the president proposed on his first day in office. But advocates say that hardly precludes ending Title 42, a change that requires no legislation. The delay, they say, is revealing.
“Actions speak louder than words,” said Abraham Paulos, deputy director of policy and communications for the Black Alliance for Just Immigration (BAJI). “I think what we saw during Black History Month with the deportations of Haitians was a telltale sign that we feel that the Biden administration wasn’t going to be as radical[ly different] from the Trump administration.”
Until recently, the harm of Title 42 was relatively invisible. Many Americans likely still don’t understand the policy, or the authority that undergirds it. Unlike former President Trump’s “Muslim ban” in 2017, when Americans rushed to the airports demanding immigrants be allowed in, the policy has garnered relatively little public attention. And Biden does not mirror Trump in the way he talks about immigrants, avoiding condemnation and media firestorms.
Then images of Border Patrol agents on horseback attempting to block Haitian migrants and asylum seekers at the southern border spread quickly online. The images showed mainly white agents using horse reins to corral Haitians from the border, as the migrants attempted to hold their children and belongings out of harm’s way. The images evoked reminders of the country’s sordid past, when the Fugitive Slave Law of 1850 appointed vigilantes to hunt escaped fugitive slaves and return them to their enslavers.
In the aftermath, the administration apologized and condemned the Border Patrol’s behavior. It suspended the use of horses. But it did not suspend Title 42, the policy that put Haitians in that position.
“The Haitians in Del Rio dramatized the harm done by Title 42, but unfortunately, the Haitians are just a small subset of those being affected by Title 42,” said Gelernt.
There are signs that the administration is getting the message. On October 8 and 9, there were no planned deportation flights to Haiti, the first days of no such flights since September 19.
The CDC declined to answer what it would take to end Title 42. Officials don’t seem to want to defend the policy on national television (see Fauci on CNN) or in private emails to their colleagues. Perhaps they won’t want to defend it in court either.
“I would be very surprised if the CDC would want to sit down for a deposition and defend Title 42,” said Gelernt. “That’s not a threat, but that’s the way normal litigation works. We’ve not seen evidence-based reporting that CDC actually believes there’s no way to process asylum seekers.”
