Title 42 is not a public health measure — Biden needs to rescind it

Recently, a Venezuelan police commissioner threatened with assassination approached border agents in Del Rio, Texas, to plead for protection. Under normal circumstances, she would have the right under federal law to make an asylum claim and plead her case before an immigration judge.

Instead, she was separated from her two sons and forced to spend the night on the cold floor of a crowded Customs and Border Patrol (CBP) cell. Then, her hands and feet shackled so tightly her body still bore the marks weeks later, she was flown over 400 miles away to El Paso, Texas, and was escorted by CBP officers over the international bridge to be rapidly expelled to Ciudad Juárez, Mexico.

The U.S. government has carried out more than 1 million such expulsions of asylum seekers and migrants, a type of express forced removal without recourse or due process, since the Centers for Disease Control and Prevention (CDC), by invoking Title 42 of the U.S. code, issued a pandemic-related order in March of last year.

At the time, the drastic step to skirt asylum law through the use of an obscure quarantine provision of the U.S. code was recognized as a pretext for the Trump administration to make good on promises to close the border to migrants.

Title 42 was the latest in a series of cruel Trump administration efforts to seal the border such as family separation and “Remain in Mexico,” which forcibly returned asylum seekers to dangerous circumstances in northern Mexican border communities. 

In many ways, Title 42 is worse than Remain in Mexico, both in terms of the vastly greater number of expulsions that have taken place and the fact that, unlike Remain in Mexico, those expelled have virtually no access to the asylum system, a situation called into question by three federal judges.  

The Biden administration has taken meaningful steps to reverse the damage done under the Trump administration to the United States’ immigration system, including repudiating the racist rhetoric of Donald J. Trump and quickly sending a bill to Congress that would provide a pathway to citizenship for millions. Department of Homeland Security (DHS) Secretary Alejandro Mayorkas ended Remain in Mexico and under pressure from litigation challenging Title 42 has granted some limited exceptions to the policy. The administration has also given Vice President Kamala Harris the task of properly moving the conversation about migration upstream by addressing the drivers of migration.

But the Biden administration has still not rescinded Title 42. And the deployment of Title 42 has increased under this administration, which has used the measure to expel individuals and families, including single mothers with children, and the expulsion of babies to Haiti, a country in crisis.

To be clear, Title 42 was never about public health; last year a high caliber group of 172 public health experts rightly termed Title 42 “xenophobia masquerading as a public health measure.” And the Biden administration itself has largely avoided justifying the order on the grounds of public health and instead invoked the necessity to “rebuild” a system “dismantled” and “gutted” by Trump. Yet Title 42 is neither an appropriate nor legal measure to manage migration at the border.

Title 42 was always about a politics of fear, intended by the Trump administration to deploy cruelty at the border towards the most vulnerable in the service of a political agenda. It has resulted in numerous violations of the rights and safety of migrants and represents one of the worst reversals of American commitment to the protection of those in need of asylum. 

In recent history, driven by politics, every administration has implemented hardline tactics at the border: additional walls are built; the budgets of border enforcement agencies rise with little accountability, and more creative and cruel ways are found to deter migrants. Rarely has a president of either political party taken steps to reverse this logic, which metastasized during the Trump administration with policies like Title 42.

Two years ago this week, El Paso saw the deadly lengths to which the politics of fear can go, with the massacre of 23 persons by an individual inspired by perverse rhetoric of fear and invasion.

Effectively addressing hatred requires facing it down decisively.

A different way is possible. Communities along the U.S.-Mexico border have shown that it is possible to receive vulnerable people forced to migrate with compassion and humanity. And working together with the federal and local governments, we can do it in a safe and orderly way that protects public health and mitigates risk.

It will take political courage, but the Biden administration must adhere to the law and our international humanitarian obligations by rescinding Title 42 and fully restoring asylum at the border.

Dylan Corbett is the executive director of the Hope Border Institute, a faith-based research and policy organization on the US-Mexico border that also provides humanitarian aid to migrants impacted by policies like Title 42.