If Biden really values human rights, he must rescind Title 42
Two years ago, the Centers for Disease Control and Prevention issued an order under Title 42 of the U.S. Code allowing the immediate expulsion of certain migrants arriving at land borders in the interest of public health. This includes persons seeking asylum in the United States due to a fear of persecution or torture in their home countries.
The government has effectively shut down asylum processing at the southern border and summarily expelled nearly 2 million migrants to imminent and foreseeable danger . The risks to which expelled migrants have been exposed are well documented. They include robbery, extortion, assault, sexual violence, injuries and trafficking. That this action has been taken in the name of public health is a travesty. This month, the CDC will come to a decision on whether the U.S. should keep in place the policy that uses public health concerns as grounds for immediate expulsion. The evidence clearly shows that the Trump-era policy, maintained under President Joe Biden, is doing more harm than good and must be rescinded.
Throughout the COVID-19 pandemic, public health experts have masterfully critiqued the CDC’s justification for the Title 42 order as “scientifically baseless and politically motivated.” In fact, the order exacerbates a different public health crisis: the epidemic of violence against migrants from the Global South, particularly girls and women.
The CDC’s order was issued under a 1944 public health statute intended to give public health authorities the power to prohibit the entry of people and goods for the purpose of reducing spread of transmissible disease within the United
States. It had never before been invoked. But since March 2020, this authority has been used by the Trump and Biden administrations to circumvent the procedures designed to protect those who have suffered from or fear human rights abuses in their home countries.
Earlier this month, a federal appeals court temporarily prohibited the administration from expelling migrants to countries where they would face persecution or torture, but did not require it to provide those migrants an opportunity to seek asylum.
While laudable, this development does not resolve the fundamental problem with the CDC order: That it will continue to permit the expulsion of vulnerable migrants to well-known dangers based on specious public health grounds. This goes against what the appellate judge’s ruling highlighted, that for expelled migrants, “the record is replete with stomachchurning evidence of death, torture, and rape.”
Many migrants who attempt to enter the United States without immigration documents at the southern border experience extreme risks during their journey. Sexual violence against women and girls, in particular, is pervasive along the entire route. Even if a migrant is not expelled to a country where she fears persecution or torture, expulsion to any country from South America to Mexico prolongs her journey, increasing her exposure to these risks. Even if their arrival violates immigration procedures, they are still entitled to make a plea for asylum. The Title 42 order by the CDC denies them that opportunity.
In doing so, the order makes migrants into sitting ducks for organized crime and petty criminals. It is yet another reason to question the credibility of a public health authority that purports to address one global public health issue — the COVID-19 pandemic — at the expense of another: violence against migrants.
Officials need help processing the influx of migrants at the southern border, and immigration reform is necessary to help provide it. However, reform should not be based on an unfounded public health rationale. Migrants subject to the order make up only 0.1 percent of the hundreds of thousands of those who cross our borders each day for the purposes of work, education and tourism without any restriction aside from testing.
There is no public health reason to hold asylum seekers in congregate detention when there are viable communitybased alternatives that have exceedingly high compliance rates with a fraction of the cost to the U.S. taxpayer. Continuing this policy in the name of public health when it is not supported by science and clearly motivated by politically opportunistic immigration policy only creates more skepticism and mistrust of both public health authorities and government actions.
The Title 42 order is a stain on the Biden administration’s promise to revitalize the nation’s commitment to advancing human rights. When we circumvent human rights laws and summarily expel people who come to our borders requesting asylum, we erode the very foundation of our country as a haven of freedom and fair laws, and damage our own integrity. The order should be rescinded immediately.
Makhlouf is an assistant professor of law with expertise in health law and immigrant rights. Battistich is the assistant service chief of virtual urgent care and telemedicine and an associate professor at New York University School of Medicine. Makhlouf and Battistich are senior fellows with Atlantic Fellows for Health Equity.