Not in Our Name: The Disingenuous Use of “Public Health” as Justification for Title 42 Expulsions in the Era of the Migrant Protection Protocols

Like many of the asylum seekers turned away at the border by the Unites States, Celina (name changed to protect her identity) left her home country of Honduras in early 2020 in hopes of a better life, to escape violence and harsh economic conditions, and wishing to reunite with family members living in the United States. However, on reaching the US border, Celina and her child were returned to Mexico because of a policy known as the Migrant Protection Protocols (MPP). Celina was then kidnapped in Mexico, causing her to miss her immigration hearing. When she was finally released and attempted to cross into the United States a second time, she was turned back again, this time because of a second US public health policy known as Title 42, which prevents would-be migrants from entering the country or seeking asylum because of concerns that they may spread COVID-19.

While waiting in Mexico for a chance to reopen her closed MPP case, Celina became worried that she might be pregnant. She had missed her menses, which was not atypical given her history of irregularity, but she started having severe abdominal and pelvic pain accompanied by fevers. A home pregnancy test confirmed her condition. Concerned, she attempted to obtain pregnancy care in Mexico five times but was turned away each time because of her migrant status and her inability to pay for her care. This experience, combined with her history of trauma in her home country and her kidnapping, led Celina to have suicidal ideation. Fortunately for Celina, she was one of the lucky few asylum seekers who was able to secure assistance from a legal team. Members of the legal team approached local border physicians (S. D. R. and M. G.) requesting a letter of declaration attesting to the seriousness of her medical condition. With this letter, the legal team was able to obtain approval for humanitarian parole, which allowed Celina to enter the United States, reunite with her family, and, ultimately, receive appropriate medical care for her pregnancy.

Sadly, Celina’s experience at the US border is not uncommon, although her ultimate admission to the United States is rare indeed. Because of the confluence of MPP and the 2020 invocation of 42 US Code § 265 (hereafter “Title 42”), an obscure public health policy last updated in 1944, more than a million expulsions of migrants and asylum seekers occurred at the US border in fiscal year 2021 alone, contrary to international law.¹

POLICY BACKGROUND

The policy known today as Title 42 originated in a 1944 law called the Public Health Service Act, which (among other things) granted the federal government quarantine powers and the power to prevent the introduction of disease at the border. Section 265 of the law notes:

Whenever the Surgeon General determines that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States, and that this danger is so increased by the introduction of persons or property from such country that a suspension of the right to introduce such persons and property is required in the interest of the public health, the Surgeon General . . . shall have the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate in order to avert such danger, and for such period of time as he may deem necessary for such purpose.²

In March 2020, the Trump administration invoked Title 42 to justify turning away migrants and asylum seekers who presented at ports of entry on the Mexican and Canadian borders and deporting those who were detained within US borders. Robert Redfield, then director of the Centers for Disease Control and Prevention (CDC), determined that

introduction into congregate settings of persons from Canada or Mexico would increase the already serious danger to the public health of the United States to the point of requiring a temporary suspension of the introduction of covered aliens into the United States.³

The same order also noted the logistical challenges of preventing the transmission of COVID-19 at the border:

Unfortunately, at this time, there is no vaccine that can prevent infection with COVID-19, nor are there therapeutics for those who become infected. . . . Commercial test results are typically available within three to four days. Currently, the time required to obtain test results—coupled with the incubation period of the disease—makes it impracticable to confirm whether each person moving into the United States is infected with COVID-19 at the time of the movement. Widespread, compulsory federal quarantines or isolations of such persons pending test results are impracticable due to the numbers of persons involved, logistical challenges, and CDC resource and personnel constraints.³

Although the US government did not have access to vaccines or rapid tests in March 2020, they need not have adopted such an extreme policy to protect the public’s health. Consider, for instance, the reasoning of CDC director Redfield, who stated that invoking Title 42 was necessary to protect the public’s health because detained migrants would be held in “congregate areas of [Customs and Border Protection (CBP)] facilities.”³ However, it was never necessary to hold asylum-seeking immigrants in congregate areas of CBP facilities for an extended period of time. As Lopez et al. argue:

Given the barriers to effective implementation of PPE [personal protective equipment] and administrative controls to prevent the spread of [COVID-19] in immigration detention centers, an evidence-based public health approach suggests . . . the release of detainees from immigration detention centers, as this strategy will reduce the likelihood of person-to-person infection and enhance the possibility of engaging in meaningful social distancing and hygienic practices as directed by the CDC.^4(p112)

That the US government invoked Title 42 for those coming through land borders but instituted only temporary travel bans for other international travelers and did not institute interstate travel bans underscores how unnecessary these extreme measures truly were, even in the early days of COVID-19.⁵

In addition to the challenges posed by the use of Title 42 to prevent the entry of asylum seekers during COVID-19, MPP—often referred to as the Remain in Mexico program—creates additional barriers for migrants seeking to enter the United States. Under MPP, individuals who arrive at the southern border and ask for asylum (either at a port of entry or after crossing the border between ports of entry) are given notices to appear in immigration court and sent back to Mexico.⁶ They are instructed to return to a specific port of entry at a specific date and time for their next court hearing. The program, which went into effect in January 2019, was used to send more than 70 000 migrants back to Mexico before it was suspended after President Biden took office.⁶ In August 2021, a federal court in Texas ordered the Department of Homeland Security to reinstate MPP—a decision that is currently under appeal—and in the meantime, MPP has been reinstated and new enrollments are continuing at several ports of entry.⁷ The policy was reviewed by the Supreme Court in April 2022, and a decision is expected this summer.^7,8 However, even if MPP is ended, the effect of Title 42 will still be felt. The American Immigration Council, a nonpartisan advocacy group, notes that after Title 42 was invoked, “new placements into MPP were almost entirely replaced by Title 42 expulsions, meaning that people would be sent back to Mexico without being placed into any kind of court process.”⁹

CLINICIAN PERSPECTIVE

For a glimpse at the on-the-ground impact of these policies, consider the case of the Rio Grande Valley Sector of the Texas–Mexico border, where S. D. R. and M. G. live and help coordinate medical care for immigrants with serious medical conditions. After Title 42 was invoked in 2020, the number of asylum-seeking families released into this country by CBP decreased dramatically.¹ Families that are released to local nonprofit humanitarian shelters generally include women in their third trimester of pregnancy and their children. Department of Homeland Security policies indicate that pregnant people experiencing medical complications of pregnancy or in their third trimester are not subject to MPP,^10,11 and, anecdotally, many pregnant women we see in humanitarian shelters report being turned away multiple times by CBP before reaching their third trimester. The mothers and their children who are refused admission in the Rio Grande Valley are returned to one of the most dangerous regions of northern Mexico, the State of Tamaulipas, where they are exposed to the risk of violence, kidnapping, and sexual assault. An alarming number of the released mothers report that their pregnancies are a product of rape on their journey through Mexico or at the US–Mexico border, and many volunteer aid organizations no longer travel to these regions of Mexico to provide humanitarian aid because of the extreme danger.

The pregnant mothers arriving at local humanitarian shelters report fearing for their own lives and their children’s lives while being forced to remain in Mexico. Such fear, attributable both to Title 42 and MPP, is a form of toxic stress, which has been shown to contribute to adverse health effects in immigrant families.¹² This constant level of fear and the lack of access to basic hygiene and health needs, such as showering facilities, safe outdoor portable toilets, clean water, soap, and nutritious food, can have lasting impacts on the health of the mother and the fetus.

Clearly, Title 42 presents a significant threat to immigrant health by abusing public health law to enact unjust immigration policies in violation of international law, and this threat is compounded by the continued use of MPP. Despite the Biden administration’s previous indications that they planned to rescind Title 42, to date it remains in place and indeed has been defended in court by the Biden administration itself. We argue that this unjust and irregular application of public health law to deter migration severely undermines the stated purpose of promoting public health, exacerbates existing health inequities, and places legitimate asylum seekers, including women and children, at grave risk. We call on the public health community to denounce Title 42 and on the Biden administration to immediately rescind its use as an immigration deterrence measure.

GOING FORWARD

Even granting that caution was warranted in March 2020, when there was very little information about COVID-19 transmission or treatment, it is worth noting that these circumstances have changed. The US government now has many more resources available to address COVID-19 through less-restrictive means than a total bar to entry, including multiple vaccine options and rapid testing. In the face of the CBP’s refusal to initiate testing and vaccinations, citing lack of capacity as the excuse, many border communities and local nonprofit humanitarian shelters have taken on the burden of testing and vaccinating.

Despite these changing circumstances, the Biden administration has left Title 42 in place and has used it to justify the expulsion of asylum-seeking migrants, including the well-publicized expulsion of more than 7000 Haitian migrants in October 2021.¹³ Homeland Security secretary Alejandro Mayorkas defended the policy, saying, “Title 42 is not an immigration authority, but a public health authority. To protect the American public. To protect the communities along the border. And to protect the migrants themselves.”¹⁴

In the ongoing litigation on the current use of Title 42, a recent ruling in the US Court of Appeals for the DC Circuit underscores the absurdity of this claim. In this case, Circuit Judge Justin R. Walker observed:

We are not cavalier about the risks of COVID-19. And we would be sensitive to declarations in the record by CDC officials testifying to the efficacy of [Title 42]. But there are none. To be sure, as with most things in life, no approach to COVID-19 can eliminate every risk. But from a public-health perspective, based on the limited record before us, it’s far from clear that the CDC’s order serves any purpose.¹⁵

Judge Walker’s acknowledgment that Title 42 does not appear to serve a legitimate public health purpose did not, however, prevent him from finding that migrants could still be expelled without being allowed to make a case for asylum. And indeed, in another case that was decided the same day, a judge in the US District Court for the Northern District of Texas ruled that the Biden administration could not exempt unaccompanied children from Title 42 expulsions. Within a week, the CDC revised its guidance to once again exclude unaccompanied children from Title 42, noting, “Expulsion of unaccompanied noncitizen children is not warranted to protect the public health.”¹⁶ Secretary Mayorkas’s insistence that Title 42 is intended to protect “the migrants themselves” appears almost laughable in light of these decisions. His defense of the policy fails to account for the irreparable harms that can result from returning asylum seekers to Mexico, their country of origin, or a third country without allowing them to make a case for asylum, in violation of international law.¹⁷

Another issue with continuing Title 42 expulsions in violation of international law is that the United States may in fact be contributing to the spread of COVID-19 to underresourced nations that do not have the same tools available to curb the spread of the pandemic. Given the wide availability of vaccines and rapid tests in the United States and the limited access to these resources in many of the countries from which asylum seekers hail, Title 42 has the potential to compound global health inequities. This is in stark contrast with the United States’ stated position of pursuing global vaccine equity. President Biden said in a statement:

As long as this pandemic is raging anywhere in the world, the American people will still be vulnerable. And the United States is committed to bringing the same urgency to international vaccination efforts that we have demonstrated at home.¹⁸

It is striking that US policy can recognize that the health of all members of the global community is interrelated with regard to the international distribution of vaccine doses but not with regard to the health of migrants at our borders. By failing in its duties toward migrants and asylum seekers during a global pandemic, the United States takes a dangerously narrow view of whose health is included in public health, and in so doing fails in its obligations to promote and protect public health within and beyond its borders.

Public health professionals and human rights advocates alike have denounced both Title 42 and MPP as deeply harmful to public health and to the United States’ standing as a world leader.^19,20 As a result of this advocacy, the Biden administration has indicated that it plans to end Title 42 restrictions on asylum seekers within the next few months, although they are currently unable to do so because of an injunction by a federal court.²¹ We call on the Biden administration to remain steadfast in their decision to withdraw Title 42 guidance; to continue efforts to end MPP and resume regular processing for migrants and asylum seekers at the US border; to increase the capacity of CBP to provide testing, isolation, and vaccination; and to stop relying on impoverished border communities and local nonprofit humanitarian organizations to provide these critical services.