VALLEY FALLS, New York — Broadly, Title 42 describes how the government is using Section 265 of the 77-year-old law called the Public Health Service Act today. One section of the act allows the Surgeon General to take action in cases where people or goods entering the U.S. pose a threat to public health. Three-quarters of a century after its passage, the Trump Administration produced the law in 2020 as a justification to deport asylum seekers entering the U.S.-Mexico border.
Officials Seek to Curb Immigration During COVID-19
Section 265 of the Public Health Service Act was based on older legislation specifically aimed at all people traveling into the U.S., not immigrants alone. According to Yale University law professor Lucas Guttentag, both the older legislation and the 1944 version were meant to promote quarantining. They say nothing about sending people back to the countries they arrived from or to other countries. Yet, that is exactly what the federal government is doing.
Before the COVID-19 pandemic, presidential adviser Stephen Miller had been investigating ways to curb immigration on the grounds of public health. He searched for proof that migrants and the communities they settled in were experiencing disease outbreaks in 2018. That same year, when migrants fell sick in “federal custody,” Miller claimed the president “should use his public health powers to justify sealing the borders.” Lawyers had to explain to Miller several times that closing the border based on public health concerns was not justified.
The Associated Press reported that after the pandemic began, Miller again suggested tightening U.S. borders using a public health pathway. Dr. Martin Cetron, leader of the Centers for Disease Control and Prevention’s Division of Migration and Quarantine, did not see this measure as justified and would not agree to enact it. Former Vice President Mike Pence then phoned CDC director Robert Redfield and told him to order the border restrictions, and Redfield did. A “former health official involved in the process” stated, “They forced us.[…] It is either do it or get fired.”
CDC Bars Those Crossing the Mexican and Canadian Border to the US
The CDC’s March 2020 order bars certain people from entering the U.S. Specifically, those crossing into the U.S. over the Mexican or Canadian borders who come “into a congregate setting in a land or coastal Port of Entry or Border Patrol Station” are not allowed to enter the country. The order also states that these migrants should be deported to “their country of origin, or another location as practicable, as rapidly as possible.”
Meanwhile, U.S. citizens or those with “valid travel documents” are exempt and allowed into the country. In other words, the order doesn’t block “all people who could potentially spread COVID-19,” as the nonprofit organization U.S. Committee for Refugees and Immigrants puts it. Rather, the order “specifically [targets]…vulnerable persons fleeing danger.”
Legally, people can travel to the United States and begin the process of seeking asylum once they arrive without any preparation. Further, the U.S. cannot deport asylum seekers to countries where they would face danger and must screen them before deportation to make sure this does not happen. Yet, the use of Title 42 is breaking these laws.
Migrants At Risk for Assault and Trafficking
“They’re being pushed back either to Mexico…or they’re being flown right back home to the danger,” Chloe Canetti, a policy analyst for USCRI, said in an interview with The Borgen Project. “And, unfortunately, what we’ve seen happen, especially with certain Black migrants, they’re being really targeted in Mexico.”
Human Rights Watch reported in April 2021 that because of Title 42, migrants have been deported without screenings and sent into unsafe situations. “Given that this has been going on so systematically, there’s a lot of people who know that these [migrants]are really vulnerable people,” Canetti said. “There’s a lot of smuggling opportunities [and]trafficking opportunities; there’s a lot of sexual assaults.”
Mirna, a migrant from Guatemala who spoke with the United Nations High Commissioner for Refugees (UNHCR) agency, left her abusive husband to live with her mother in the U.S. She was deported to Mexico and was kidnapped while in the city of Tijuana. Lorena, a Honduran migrant, left the country when a gang said they would murder her and her loved ones. After being deported from the U.S., she began living in a shelter with other asylum seekers in Tijuana. “We’re stuck. We can’t go back home, and we can’t go forward.” Mirna said in the interview. “We have the right to seek refuge; give us the opportunity.”
Fighting Title 42
In May 2021, Filippo Grandi, the U.N. High Commissioner for Refugees, called on the U.S. to stop the use of Title 42 and “restore access to asylum for the people whose lives depend on it, in line with international legal and human rights obligations.” Matthew Reynolds, the UNHCR representative to the U.S. and the Caribbean, made a statement in August 2021. Again, he asked the U.S. to cease the use of Title 42 and emphasized every person’s “basic right” to seek asylum. Reynolds also criticized the U.S. for placing more stress on southern Mexico’s “overburdened humanitarian response capacity.”
Initially, it appeared that the new presidential administration would discontinue or reduce the use of Title 42. In February 2021, unaccompanied children were exempted from deportation under Title 42. Families were supposed to be exempted at the end of July 2021. However, the administration reversed direction in late July and early August. Then, the CDC put out a new order reasserting the need to deport asylum seekers due to the pandemic.
Advocacy Organizations Strive to Fight Title 42
Advocacy groups have worked hard to fight Title 42. “We’re often producing a lot of educational materials, […] meeting with members of Congress, […] having meetings with the administration,” Canetti told The Borgen Project in reference to USCRI and other organizations. Meanwhile, the American Civil Liberties Union and a number of other groups pursued a lawsuit to stop deportations under Title 42 against both the previous and current presidential administrations.
In September 2021, a judge ruled against deporting migrants and preventing them from seeking asylum under Title 42. The ruling covers families specifically, not “single adults,” according to Politico. But it is still a very important step. Use of Title 42 is set to end for families two weeks from September 16.
– Victoria Albert