Tuesday, November 30, 2021

A Broken Promise: Biden Administration’s continued use of Title 42 expulsions

Guest blogger: Justin Colón, law student, University of San Francisco:

At the onset of the pandemic, the Trump Administration (through the CDC) authorized US Customs and Border Protection to immediately remove anyone entering the country (without having to follow the usual process required for removal) in order to prevent the spread of COVID. These Title 42 removals could occur even if the removed individual had a valid asylum, humanitarian, or other claims for entry into the US. Thus, Title 42 has been used to sidestep the usual removal and asylum process contained in the INA. While the CDC order regarding Title 42 does not apply to [2]  Prior the use of Title 42, migrants who attempted to enter at the border would either be subject to a Credible Fear Interview if seeking asylum or, if they successfully entered without inspection, would receive a formal notice of deportation/removal. Instead, BP agents would take migrant’s biometric information and perform a health check for COVID symptoms before the migrant is removed to their country of origin. Despite Title 42’s ostensibly public health justification, experts at the CDC stated that the new removal policy would actually do little to limit the spread of COVID. As with most immigration policies, migrants from Mexico and Central America were those primarily affected.What exactly is Title 42? Title 42 authorizes the Surgeon General (now the CDC), acting in accordance with regulations approved by the President, to prohibit, in part or whole, the entry of any person into the US in order to prevent the spread of communicable disease.[1] Originally enacted in 1944, Title 42 was rarely used until the COVID-19 pandemic for obvious reasons. While on its face, the use of Title 42 to prohibit entry into the US ostensibly reads as sound policy, the reality is, as always, much more complicated.

One of Biden’s many campaign promises was to end the various draconic Trump-era immigration policies. The Biden Administration’s commitment to this promise (or lack thereof) is best reflected by the continued use of Title 42 to remove migrants at the border, stating that it is “necessary to limit the spread of the coronavirus.” The numbers of migrants expelled under Title 42 are alarming—in the 2021 fiscal year among the more than 1.7 million people detained by BP, 61% were expelled under Title 42.[3] While the original Title 42 order has been amended several times[4] the order remains largely the same as previous orders under the Trump Administration. Perhaps the most concerning issue is the potential to use Title 42 to remove lawful permanent residents and even citizens[5]. Courts have noted that the power the government claims under Title 42 as “breathtaking broad” and circumvents Congress’s plenary power to remove non-citizens.[6] Here, the public health justifications for continued use of Title 42 to deny entry and remove migrants at the border is not supported by the science and politically motivated.[7] Most public health experts agree that is the unvaccinated—and not migrants entering into the US—that are driving the rise in new COVID infections. The continued use of Title 42 fuels the rhetoric that migrants are the cause for new infections and in an era of hype-partisanship is detrimental to comprehensive immigration reform and policy. 

With the constant threat of new coronavirus variants and no end in sight to the ongoing pandemic, the continued use of Title 42 to ostensibly protect “public health” has the potential to dramatically shape immigration policies going forward. Public health policy must reflect scientific data and not be fueled by political rhetoric. Title 42 prevents those with valid asylum claims or humanitarian claims form seeking those forms of relief. This flies in the face of the current administrations claim that the Title 42 restrictions protect the migrants themselves—many of those fleeing persecution will be returned to the very source of their prosecution. How this protects migrants is a mystery to me. The Biden Administration needs to honor its promise to those seeking entry into the US, many of whom have valid asylum claims, and stop the use of Title 42 removals.


[1] 42 U.S.C. § 265

[2] A Guide to Title 42 Expulsions at the Border – Fact Sheet, AMERICAN IMMIGRATION COUNCIL (Oct. 15, 2021).

[3] https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters-by-component

[4] Most importantly, under the current administration’s interpretation, unaccompanied minors are exempt from a Title 42 removal. Parents traveling with their children and single adults are still blocked from entering the country.

[5] See Final Rule, 85 Fed. Reg. at 56,448

[6] See P.J.E.S. by and through Escobar Francisco v. Wolf, 502 F.Supp.3d 492 at 539 (D.D.C 2020), (granting injunction to class of plaintiffs, consisting of unaccompanied minors, which enjoined the government from expelling the class members from Title 42 expulsion.)

[7] See Anika Baskter, MD, et.al, Letter to CDC Director Walensky, HHS Secretary Becerra, and DHS Secretary Mayorkas on the August 2021 Title 42 Order (Sept. 1, 2021); See also Dr. Anthony Fauci  Oct. 3 CNN interview (“My feeling [on Title 42] has always been that focusing on immigrants, expelling them … is not the solution to an outbreak.”)



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