“A Biden administration will listen to scientists and heed their advice,” Joe Biden tweeted last year, one of many pledges to end the politicization of public health that gutted the Trump administration’s ability to respond to the pandemic. But Biden broke his promise on the southern border.
Since coming into office, the Biden administration has relied on an order first invoked by the Centers for Disease Control under Donald Trump to curb migration, ostensibly in the name of public health. Called Title 42, the Trump administration first considered using it to expel asylum-seekers in 2019 on the pretext they were spreading mumps and the flu. Then in March 2020, the coronavirus arrived and Title 42 was finally invoked, effectively sealing U.S. borders. Though the Associated Press reported that CDC officials could not find a public-health reason to shut out asylum seekers, Vice-President Mike Pence ordered them to issue the order anyway, citing the threat of COVID-19, which was already running wild on the U.S. side of the border. One former Pence aide described the plan to the AP as a “Stephen Miller special,” adding that the xenophobic Trump adviser was “all over that.”
Though border crossings have reopened and Border Patrol agents under Biden are now accepting the unaccompanied children turned away in the early days of the directive under Trump, families and single adults are still being expelled without an opportunity to show a fear of persecution in their home country, which is necessary to obtain asylum. Over 1 million people have been expelled without processing due to Title 42 this year alone, according to U.S. Customs and Border Protection data. After being expelled, migrants are subject to frequent attacks in Mexico, including kidnappings and rape at gunpoint, according to a report from the group Human Rights First. A woman from southern Mexico fleeing cartel violence died by suicide in October after learning at the border that Title 42 would block her from claiming asylum, the group reported. On Monday, the reality for migrants at the border will return even closer to that from the Trump era, when the Remain in Mexico policy — requiring asylum seekers to wait on the other side of the border as asylum claims are processed — is reimplemented after a federal judge ordered the administration to do so. The policy has raised the same concerns about violence against asylum seekers.
“Essentially, the United States has no asylum system for families at this point,” says American Civil Liberties Union attorney Lee Gelernt, who is leading a lawsuit to block the order. Filed in August after negotiations to end the policy stalled out, the ACLU is arguing that the policy — dating back to an 1893 code to keep ships from Europe with travelers with cholera from docking — was never meant to turn away individual travelers. Nor does it authorize expulsions, as asylum laws written by Congress do “not deny someone the right to seek protection because of a communicable disease,” as Gelernt explains. Despite a federal judge agreeing with the ACLU and blocking Biden’s order enforcing Title 42 in September, the administration appealed the ruling, insisting that it is still a necessary public-health measure. The policy remains in effect.
“We said after World War II we would never turn our backs again on people fleeing danger,” says Gelernt. “But the Trump administration did it. The assumption and the hope was that was going to be a blip in American history, and yet the Biden administration now has continued to close the border to families. It’s fairly shocking.”
Also alarming is the growing evidence of the original order’s uselessness in a nation that already leads the world in confirmed coronavirus deaths. In November, Anne Schuchat, who served as the second-highest ranking official at the CDC under Trump, testified before a House committee investigating the pandemic, saying that using Title 42 “wasn’t based on a public health assessment,” though it “may have been initiated for other purposes.” A more effective use of resources, she noted, would have been a “focus on reducing spread on our side of the border.”
Despite the confirmation that the order’s public-health rationale was bogus, the Biden administration continues to lean on Title 42 at the border amid an increase in undocumented arrivals — and heat that the administration isn’t doing enough to stanch the flow. “It’s clear that the Biden administration is trying to take cover with CDC,” says Gelernt, of a White House that has been unable to focus on immigration reform, a notoriously difficult political sphere for Democrats entering an uphill midterm election.
The administration has not been keen to acknowledge the source of the order. When the Department of Homeland of Security faces criticism for expelling migrants entitled to make a claim of asylum, it states that “Title 42 is a public health authority, not an immigration authority, and its continued use is thus dictated by the CDC.” White House press secretary Jen Psaki has similarly punted to the CDC, saying that “we are still under Title 42 because we are in a global pandemic.” The CDC, however, did not respond to requests for comment regarding the futility of the order as described by a former CDC official. “CDC has never put in a sworn affidavit in the months and months we’ve been litigating this,” says Gelernt, the ACLU lawyer. “I think that’s likely because no CDC expert would want to sit down for a deposition and have to say under oath that they believe it’s necessary to send these families back to danger.”
For an administration that vowed “fair and humane” immigration reform on the campaign, their actions have caused considerable internal frustration. In September, after Border Patrol agents were seen beating back Haitian asylum seekers at the southern border, two State Department officials left their roles after the migrants were deported under Title 42. U.S. Special Envoy to Haiti Daniel Foote cited the “inhumane, counterproductive decision to deport thousands of Haitian refugees and illegal immigrants to Haiti” as the reason for his departure.
“When they were rounding the people from Del Rio bridge using guys on horseback, Biden said ‘this is not us,’ Kamala Harris gave a big statement, and Mayorkas said it made us sick — then they returned them anyway,” says one senior State Department official. “What is it, you object to them being rounded up that way but you don’t object to them being returned?”
The next opportunity to overturn the order comes next month, when the D.C. Circuit Court of Appeals hears oral arguments in the ACLU case. “All I can say is we would hope that if two courts rule against the administration they would finally end it,” says Gelernt.
In the interim, concerns over the Omicron variant — which has been detected in at least 15 states already — make it unlikely that the administration willingly abandons Title 42 entering a midterm year in which Republicans are likely to accuse Biden of being soft on the border.
“We’re really seeing this political reflex to close borders to try to avoid being seen as not reacting quickly enough,” says Katherine McCann, a senior program officer at Columbia University’’s Program on Forced Migration and Health. “I worry about that effect on Title 42 repeal, where people are going to fear regardless of the actual public-health impacts.”