Biden Must End Mandatory Expulsion on the Border

During his presidential campaign, U.S. President Joe Biden promised to end cruel Trump-era immigration policies and honor U.S. legal and moral responsibilities to protect refugees. But he has failed to end a policy of mandatory expulsion that seals the border under the pretext of public health. This policy turns away asylum-seekers and separates children from their parents, relegating even the youngest children to the horrors of facing detention alone. Adult asylum-seekers and families are precluded from asserting their claims for protection and are instead forced to remain in Mexico in squalid and dangerous border towns.

In March 2020, as the COVID-19 pandemic led to shutdowns across the country, the Trump administration invoked Title 42, a public health statute that closed the U.S. border, allegedly to stop the spread of the coronavirus. It did this over the objections of senior Centers for Disease Control and Prevention (CDC) experts, who argued the ban lacked—and still lacks—any medical or scientific justification. Since its inception, Title 42 has led to the expulsion of more than 650,000 migrants seeking refuge in the United States.

Though technically a CDC directive, Title 42 was invoked under pressure from Stephen Miller, senior advisor to former U.S. President Donald Trump, and other anti-immigration White House officials. At the time of issuance, top CDC medical professionals attested there was no scientific basis for the order, a stance that public health officials continue to hold. The order is a specious ban on migration that takes advantage of public fear of COVID-19 to push a xenophobic agenda.

Title 42 is based on the false premise that migrants arriving at the southern border are subject to higher COVID-19 infection rates relative to people already in the United States. But in reality, immigrants arriving at the border often have lower COVID-19 case positivity rates than the states they are trying to enter. FEMA reported that less than 6 percent of COVID-19 tests for migrants at the U.S.-Mexico border have come back positive—lower than the overall positivity rate in Texas both when the sample was taken and now.

Leading public health experts, physicians, and epidemiologists have repeatedly condemned this policy as xenophobic, cruel, and unlawful. There is strong agreement it is without scientific basis and serves no public health interest.

Title 42 is not only unjustified, but it is also unlawful. In its legal guidance, the United Nations High Commissioner for Refugees (UNHCR) warned against enacting policies that prevent people from seeking asylum in reaction to the pandemic. The UNHCR made it clear countries could both protect the public health of its people while still honoring laws and treaty obligations requiring protecting those forced to flee their homes, with the high commissioner for protection saying “measures restricting access to asylum must not be allowed to become entrenched under the guise of public health.”

Here’s what all this looks like on the ground. Adults apprehended after crossing the border are turned back to Mexico. It’s the same for parents arriving with their children, who are summarily expelled under Title 42, obviating the need to decide how to detain and release them. The only exception to expulsion is unaccompanied children who must be admitted to the United States because of the 2008 William Wilberforce Trafficking Victims Protection Reauthorization Act, a law that protects them from being trafficked.

Not being able to cross as a family unit, some parents make the drastic decision to send their children into the United States with a trusted caregiver like a grandma. The children will be kept in the United States, labeled as unaccompanied, and grandma will be sent back to Mexico. Some parents without other options are forced to make a version of Sophie’s Choice, torn between sending their children into the United States alone rather than have them stay in extremely dangerous Mexican border towns or return home to the violence and other harms they fled from in the first place. Thus, Title 42 has become, in effect, a method of family separation—a practice Biden swore he would end.

Although U.S. borders have remained closed to asylum-seekers, they have remained open to hundreds of millions of pedestrians and passengers. If these groups can be processed and brought safely into the United States, refugees can be too. Rather than unilaterally expelling those who arrive at the U.S. border as a supposed mechanism of protection from COVID-19, common sense public health measures can be taken. The provision of masks and social distancing in combination with ramped up testing and quarantine capacity would be effective to prevent the spread of disease. Finally, rather than holding migrants in densely populated detention centers on arrival, using a case-management system that allows migrants to shelter with their families or close contacts within the United States would prevent the spread of disease among migrants and protect their health.

There is no room for cruelty in the U.S. response to those who run for their lives to its border. These are mothers and fathers, grandmas and grandpas, infants and children seeking safety and protection from persecution, violence, and instability. A society that promotes and protects public health does so for all who seek it, not just for those for whom it is convenient. Title 42 does more to harm the health of refugees than protect the health of Americans. The United States should be proud to be a nation that accepts and promotes the dignity of those who are fleeing violence and persecution. Repealing Title 42 and supporting and protecting migrants once they arrive is a step toward this future.

Kate Sugarman, a family medicine physician and Georgetown Law School faculty member, and Zackary Berger, associate professor at the Johns Hopkins School of Medicine, also contributed to this piece.