By: Louis Gallegos

The right to seek asylum is a fundamental human right. However, it has been severely restricted during the COVID-19 pandemic through the United States government’s use of Title 42. Title 42 is a somewhat obscure provision that grants the government the authority to “prohibit … the introduction of persons” into the United States when there is a serious risk of the spread of communicable disease. In March of 2020, the Trump administration began to utilize Title 42 to expel migrants from the southern border. The Trump administration argued that the expulsion, even of those claiming to seek asylum, was necessary to curb the spread of COVID-19. From March to September of 2020, nearly 200,000 people were expelled from the southern border under Title 42.

Although the Trump administration initiated the use of Title 42, the Biden administration has continued to utilize it. Since October of 2020, over one million migrants have been expelled from the southern border under Title 42. The Biden administration argues that its use of Title 42 is necessary as a safeguard against COVID-19. Secretary of Homeland Security Alejandro Mayorkas maintains that Title 42 is a matter of health and not immigration policy. He stated that the Biden administration’s use of the policy is necessary “[t]o protect the communities along the border [a]nd to protect the migrants themselves.”

On its face, the government’s justification for the policy may seem reasonable. It is obvious that unrestricted travel to and from the United States could facilitate the spread of COVID-19. However, a closer look at the way Title 42 has been applied and the impacts it has on people seeking asylum reveals its true nature. Title 42 is at best ineffectual in preventing the spread of COVID-19 and at worst devastating to people seeking asylum.

Under Title 42, people seeking asylum are denied the opportunity to raise their asylum claims. Instead, they are forcibly removed from the US and sent directly back to the danger they are attempting to flee. Recently, Haitian asylum seekers fleeing natural disasters and political unrest have been sent away without the opportunity to make their case for asylum (or to be tested for COVID-19, undermining the supposed health justification for the policy). Notably, the policy has only been consistently applied to those most vulnerable—asylum seekers. Title 42 could theoretically apply to US citizens and migrants with equal force, but the Trump and Biden administrations have used it exclusively against migrants.

In February 2021, Biden administration decided to exempt unaccompanied minors from expulsion under Title 42. Additionally, Judge Emmet Sullivan of the US District Court for the District of Columbia recently declared that the policy could not be used to expel families seeking asylum (the Biden administration has filed an appeal). These developments are certainly a step in the right direction. However, they also reveal the arbitrariness of Title 42’s enforcement throughout the pandemic. The policy may not be used on unaccompanied minors or families, but it is still applied in full force against single adults. Unaccompanied minors do not inherently present a greater or lesser risk toward COVID-19 transmission than single adults. If the true purpose of Title 42’s recent enforcement is to prevent the spread of COVID-19, it makes little sense to distinguish between adults and minors seeking asylum (or between citizens and non-citizens for that matter). Both the Biden and Trump administrations have justified Title 42 as a health measure, but many public health experts doubt its efficacy given the total number of border crossings that occur every day. In June 2021, 11,000,000 people crossed the US-Mexico border without any issue under Title 42. It is difficult to understand how Title 42 is legitimately a public health measure when it exclusively targets asylum-seekers who pose no greater risk of COVID-19 than the thousands of US citizens who cross over the border without issue every day.

Effective immigration policy requires balancing safety and security at the border with the rights of people wishing to enter the country. Title 42’s recent enforcement is an ineffectual strategy for protecting the former and a total failure to protect the latter. Although there have been some positive developments recently, the Biden administration is still determined to use Title 42 to its full extent to justify the mass expulsion of migrants and asylum seekers. Until the administration stops rejecting these people under the guise of public health, the United States will be failing in its basic obligation to protect those who flee their countries in search of a better life.


Citations

[1] https://www.law.cornell.edu/uscode/text/42/265

[2] https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics/title-8-and-title-42-statistics-fy2020#

[3] https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics/title-8-and-title-42-statistics-fy2020#wcm-survey-target-id

[4] https://www.npr.org/2021/09/20/1038918197/the-biden-administration-is-fighting-in-court-to-keep-a-trump-era-immigration-po

[5] https://www.hias.org/blog/title-42-over-million-expulsions-and-no-end-sight

[6] https://abcnews.go.com/US/title-42-amid-backlash-biden-administration-defends-trump/story?id=80149086

[7] https://www.federalregister.gov/documents/2021/02/17/2021-03227/notice-of-temporary-exception-from-expulsion-of-unaccompanied-noncitizen-children-pending

[8] https://www.politico.com/news/2021/09/16/biden-title-42-blocked-asylum-512271

[9] https://www.americanimmigrationcouncil.org/research/guide-title-42-expulsions-border


Louis is currently a 2L at the Sandra Day O’Connor College of Law at Arizona State University. He graduated from the University of Arizona with a B.S. in Psychology and a B.A. in East Asian Studies and Linguistics. His legal interests include criminal justice and the relationship between intellectual property law and social justice. His personal interests include record collecting, video games, and traveling.