immigration

Border Expulsions Are ‘Deceptive and Dangerous’

Both the Trump and Biden administrations have enforced mass expulsions of asylum seekers at the US-Mexico border under Title 42. In a new commentary and Q&A, Sondra Crosby and Michael Ulrich explain why this policy lacks scientific basis and is a grave misuse of the law.

The United States’ long-held tradition of offering refuge to individuals and families fleeing persecution or war abruptly ended in March 2020 when the Centers for Disease Control and Prevention, under the Trump administration, issued a public health order that effectively closed the border to almost all undocumented immigrants from Mexico and Canada.

Citing concerns about the spread of COVID-19, the agency issued the “Order Suspending Introduction of Certain Persons from Countries Where a Communicable Disease Exists” by invoking a little-known provision of US health law—section 265 of Title 42 in the Public Health Service Act—to authorize the rapid expulsion of migrants back to Mexico or their home country, without giving them a chance to apply for US asylum in the US.

Despite promising to rescind harsh Trump-era policies towards migrants, the Biden administration has largely defended and extended the Title 42 policy (with certain changes), maintaining that it is a public health necessity in the face of the highly contagious Delta variant and record illegal border crossings. But public health experts and immigration advocates have roundly condemned the expulsion policy as a misuse of public health law and a stark violation of human rights. Health officials have admitted there is little evidence that the policy actually protects the public, and federal courts have rejected the legal basis of Title 42, ruling that the law does not permit expulsions.

In a new commentary in the journal The Lancet Regional Health—Americas, Sondra Crosby, associate professor of health law, ethics & human rights, and Michael Ulrich, assistant professors of health law, ethics & human rights, call for the immediate withdrawal of the expulsion policy, arguing that it is “based on a perversion of science, undermines the health and human rights of immigrants and asylum seekers, and betrays the public’s trust in public health.”

The order “not only lacks public health justification, but is legally specious,” and it echoes the country’s history of using contagious diseases to oppress marginalized populations, they write.

“The impetus behind the policy appears to be a desire to keep out or expel certain immigrants seeking protection as ports of entry remain open to other travelers… Public health cannot and should not be used to target populations deemed unwanted or unworthy of protection,” the authors write.

As the American Civil Liberties Union and other advocates continue to challenge the border expulsions in court, Crosby and Ulrich spoke further about the harm and legal issues surrounding the Title 42 policy.

The Biden administration and the CDC have repeatedly claimed that Title 42 is a “public health imperative” and not a border enforcement tool. Can you expand on how this policy poses a public health threat and endangers undocumented immigrants and asylum seekers?

Crosby: Title 42 is a political tool designed to block migration of those fleeing persecution, and has nothing to do with protecting the public’s health. Over 1.2 million expulsions have been carried out since the pandemic began, even though ports of entry remain open with nearly 11 million people crossing the southern border every month, and thousands flying into the United States every day.

Detaining asylum seekers in congregate settings and refouling across national borders actually increases the risk of COVID-19 transmission. Data shows high rates of infection in ICE detention centers.

The consequences of returning asylum seekers to the countries from which they fled persecution is putting them at risk of torture, sexual assault, trafficking, and possibly death. Thousands of kidnappings, rapes, and other attacks on people expelled or blocked at the US border have been recorded since Biden took office.

Ulrich: The selective use of these measures, focused on the southern border and enforced largely against a handful of specific countries, raises serious doubts about the alleged public health justification. White people from predominantly white countries can and do spread the disease, but the policy implies this is not the case. And as we saw with the early stages of COVID, shutting down borders and flights to and from specific countries simply does not work to restrict the spread of diseases. It stigmatizes and exacerbates health problems for the most needy populations.

These types of policies also encourage secrecy and avoiding government officials, which places these same populations at increased vulnerabilities for violence and abuse, as well increasing the likelihood of disease spread. The best way to contain the spread of a contagious disease is to encourage cooperation and transparency from the public, regardless of their immigration status, so that containment measures can be utilized when they are in fact necessary.

What are the next legal steps in fighting this policy? With the new concerns around the Omicron variant, is it unlikely that the administration will end this policy anytime soon without a court order?

Crosby: Closing borders is not an effective public health strategy with current or future variants. The CDC must rescind its endorsement of the Title 42 policy.

Ulrich: There are legal challenges to the administration’s interpretation of the statute. Oral arguments will be held in January and, as stated in our piece, we believe the language of the statute precludes the selective and discriminatory use of Title 42 to deny the right to an asylum hearing. While there is still more to learn about the Omicron variant, the fact still remains that denying entry and asylum to those who test negative and pose no true threat to public health is not justifiable. The Omicron variant, as of now, does not provide any new circumstances that would warrant the unnecessarily discriminatory use of Title 42. 

Last week, the Biden administration announced they will reinstate the Trump-era Migration Protection Protocols (MPP), also known as the “Remain in Mexico” policy, that forces asylum seekers to stay in Mexico until their U.S. immigration court date. What are your thoughts on this policy, and is it similarly a violation of human rights and the law?

Crosby: It’s very disappointing that we are reverting to punitive, Trump-era policies that endanger the lives of asylum seekers. We strongly believe MPP should be completely eliminated. Developing alternatives to MPP and detention—such as releasing asylum seekers into communities with NGO support—is critical to bringing the US into compliance with international human rights law.  

Ulrich: While the administration had their hand forced by a court ruling, it is important to reiterate that this policy is not based in principles of public health and, similar to the Title 42 policy, is more likely to exacerbate problems and undermine public health efforts.