Title 42 and the Fault Lines of Expulsion at the Border

In September this year, images of border patrol agents riding horseback, whips in-hand, began to rapidly circulate news cycles and the internet. As Americans and others abroad grappled with those images of Haitian refugees being run down in the waters of the Rio Grande, scenes seemingly cut from a much older chapter in history, one key element seemed to be lost in the fray. While Trumpites defended Customs and Border Protection agents and the Biden administration attempted to distance itself from the “outrageous” actions of its own appendage, a particular bit of crucial U.S. law went largely unnoticed, a piece of law that binds the two most recent administrations together in uncomfortably bipartisan ways.

Written in the 265th section of U.S. code is Title 42, which contains a piece of health law that gives the Director of the Center for Disease Control the ability to prohibit the introduction of individuals into the country when it is believed that “there is a serious danger of the introduction of [a communicable] disease into the United States.”

Since March 20, 2020, both migrants and asylum seekers, many of whom seek entry via the U.S.’s southern border, have been expelled amid concerns surrounding the spread of COVID-19. While, in letter, the law is aimed at minimizing the potential spread of a communicable disease, such as COVID-19, the Trump and now Biden administrations have both exercised this particular element of U.S. health law to not only deny the entry of migrants and asylum seekers but to turn them away without any consideration under the standard—while still shrewd—procedures for processing.

The use of Title 42 in this manner has many important implications, one of which is the denial of asylum seekers, individuals who might otherwise at least be considered for temporary shelter. Most recent have been Haitians fleeing the devastation and aftermath of the August earthquake and tropical storm, Grace. According to U.S. Customs and Border Protection data, over 17 thousand were taken into custody at the border in the month of September alone, many of whom were sent on flights back to their crippled island nation. This has, in turn, produced the effect of convincing many to temporarily stay in Mexico to avoid the grim outcome of being sent back to Haiti, an effect U.S. administrations have being intent on producing in other migrants for many years to the frustration of the Mexican government, and the detriment of people already having been the subjects of great instability and uncertainty.

The latitude of Title 42’s application may not be surprising but it should be deeply concerning, for if the tide of migrants fleeing climate disasters is only to swell, then the actions of past and present administrations, no matter their rationale, in denying and expelling asylum seekers is of grave note.

However, one need not dispense with that rationale in order to criticize government action. In fact, flaws in that rationale are abundant. Since the outset of the pandemic, an estimated 1.2 million expulsions have occurred at the southern border, while regular border crossings (including travel) amounting to nearly ten times that number occur every month. Through much of the first year of the pandemic, I was able to cross regularly into Tijuana, to get my medications without additional screening, paperwork, or hassling by Customs and Border Protection agents. Friends of mine have frequently visited Ensenada, Cabo San Lucas, Cancún, and Mexico City freely even as case numbers in both Mexico and the United States remained high. Indeed, since the reopening of the border in 2020, travelers have continued to fly and cross the border by land with little to no restrictions, despite being reasonably exposed to the same, if not increased, risk of COVID infection as migrants and asylum seekers arriving at the southern border.

The rationale as stated by the Department of Homeland Security, under both Presidents Trump and Biden, is thin at best, and at worst an ill-disguised appeasement of domestic concerns over immigration. Whether animated by anti-immigrant sentiments or a calculated attempt at domestic political appeasement, the result is much the same. Whatever the case, it’s certainly a paltry excuse to turn away migrants and asylum seekers desperate in their search for safety and security. While the threat of communicable diseases like COVID-19 are undoubtedly real, what remains unsubstantiated is the claim that enactments like Title 42 are intended as forestalls of public safety and not convenient walls meant for the politically undesirable.

Soures:

“A Guide to Title 42 Expulsions at the Border.” American Immigration Council, 15 Oct. 2021, https://www.americanimmigrationcouncil.org/research/guide-title-42-expulsions-border.

King, Bernice A. “Haitian Migrants Seeking Asylum in the U.S. Deserve Better Treatment: Bernice A. King.” USA Today, Gannett Satellite Information Network, 6 Oct. 2021, https://www.usatoday.com/story/opinion/voices/2021/10/06/inhumane-policies-against-haitian-migrants- must-end/6010132001/.

Rose, Joel, and Scott Neuman. “The Biden Administration Is Fighting In Court To Keep A Trump-Era Immigration Policy.” NPR, NPR, 20 Sept. 2021, https://www.npr.org/2021/09/20/1038918197/the-biden-administration-is-fighting-in-court-to-keep-a-trump-era-immigration-po.

“Why Are Haitian Migrants Gathering at the U.S. Border?” Council on Foreign Relations, Council on Foreign Relations, https://www.cfr.org/in-brief/why-are-haitian-migrants-gathering-us-border.

https://www.ecfr.gov/current/title-42/chapter-I/subchapter-F/part-71/subpart-D/section-71.40

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