Asylum Law and Title 42: A Lens for the Power of International Law
In March 2020, the Center for Disease Control and Prevention under the Trump administration issued Title 42, an order that sanctions the deportation of migrants and asylum-seekers for the purpose of “prevent[ing] the spread of communicable disease.” The rule follows the precedent set by The Public Health Service Act of 1944 to prevent the introduction and transmission of communicable disease from foreign countries to the U.S. So, when the COVID-19 pandemic began and positivity rates skyrocketed in March 2020, the Trump administration contended that granting entry to more migrants posed a risk for an impending public health crisis. Humanitarian advocates contested the rule, arguing that it was being used as a mechanism by the Trump administration to unfairly reject migrants and asylum-seekers at the U.S.-Mexico Border at a time when the number of undocumented immigrants was on the rise.
Throughout the 2020 Presidential campaign, former President Trump was under strict scrutiny from Democrats for his arguably inhumane immigration policies. Despite this, President Biden chose to keep the rule in place after taking office. With the Delta and Omicron variants on the rise, Biden insisted that Title 42 was necessary to prevent coronavirus from spreading in holding facilities and nearby communities.
According to the American Civil Liberties Union (ACLU), the rule will be used to send migrants back to dangerous conditions. The organization contends that the policy “circumvents existing legal protections built into immigration law” by deporting immigrants before they are able to apply for asylum; the ACLU issued a challenge to the administration’s policy in court. After a lower court came down on the side of the ACLU, the Biden administration filed for appeal and the case was brought to the U.S. Court of Appeals for the District of Columbia Circuit.
On Friday, the Court of Appeals reinforced the lower court’s ruling: “For now, the Executive may expel the Plaintiffs, but only to places where they will not be persecuted or tortured.” In other words, the Biden Administration could not use Title 42 as a blanket rule to expel families when their deportation may be life-threatening. According to Lee Gelernt, the ACLU’s attorney, the decision will force the administration to put processing systems in place to screen and review individual requests for asylum before deportations. These initial screenings will assess immigrants for “reasonable fear” of returning to their home country. Pro-immigrant advocates and experts have argued that this policy will be very difficult to implement—just another reason why Title 42 should be retracted.
In contrast to the previous administration, the Biden administration did announce that it would not use Title 42 to expel unaccompanied minors. This new stipulation has opened the administration up to attacks from conservative lobbyists and policymakers. Most notably, the state of Texas sued the Biden administration, claiming that this selective use of Title 42 puts border states at risk of higher COVID-19 transmission rates. In his decision, Texas Northern District Court Judge, Mark Pittman, argued: “the President has (arbitrarily) exempted COVID-19 positive unaccompanied alien children from Title 42 procedures – which were proposed with preventing the spread of COVID-19. As a result, border states such as Texas now uniquely bear the brunt of the ramifications.” While the U.S. district court decision recommended that Title 42 be recalled, Pittman’s decision recommends that it be upheld and expanded. The contrast between these two lawsuits, filed by members of opposite sides of the political spectrum, highlights the deep politicization of the order.
The case of Title 42 also calls into question the U.S. position in the international community as an advocate for refugee and migrant rights. Eleanor Acer, a refugee protection director at Human Rights First, a U.S.-based rights group, points out that the U.S. consistently encourages other countries to uphold refugee law. For example, amidst the recent Russian invasion of Ukraine, the U.S. has been one of the most vocal nations about relocating displaced Ukrainians. Yet, with the use of Title 42 and other policies like “Remain in Mexico,” the U.S. seems to be violating their own human rights standards as they are applied to migrants and refugees. With this in mind, the question arises: how much longer will the U.S. be able to maintain its position as a global leader in human rights, given its internal conflict with human rights policy?
Margaret Nesi is a sophomore at Brown University, concentrating in Computer Science and International and Public Affairs. She is a staff writer for the Brown University Undergraduate Law Review and can be contacted at margaret_nesi@brown.edu.