thebigp

Source: Human rights watch
Well before the Covid-19 pandemic, Stephen Miller, White House adviser to then-US President Donald Trump, floated the idea of using the government’s public health authority as a means of achieving the administration’s long-pursued goal of closing the border to asylum seekers. At the time, White House officials and attorneys reportedly told Miller, who has promoted white nationalist ideologies, and Trump that they lacked the legal authority to do so.
But as the US was hit hard by the Covid-19 pandemic, Trump administration officials pressured public health authorities to circumvent US and international law protecting refugees by ordering immigration authorities to summarily expel migrants without providing them the opportunity to seek protection in the United States.
This analysis covers the impact of the resulting March 2020 order from the US Centers for Disease Control and Prevention (CDC) under Title 42 of US law. Although President Joe Biden promised during his campaign to restore access to asylum at US borders, and has made an exception in processing unaccompanied children, close to 100 days into the Biden administration, Stephen Miller’s desired border closure remains largely in place. The Title 42 expulsion policy is illegal and violates the human rights of those subjected to it. The Biden administration, now complicit in those rights violations, should rescind the policy immediately while taking measures to ensure the humane and dignified reception of asylum seekers.
What is Title 42 and how does it work?
The Title 42 expulsion policy has effectively closed the US border to nearly all asylum seekers based on the misapplication of an obscure, 75-year-old public health law. That law, the Public Health Service Act of 1944, was designed to confer quarantine authority to health authorities that would apply to everyone, including US citizens, arriving from a foreign country. Quarantine authority was never meant to be used to determine which noncitizens could or couldn’t be expelled or removed from the US. In debating the law’s predecessor provision, Congress specifically kept any reference to immigrants or immigration out of the law’s text because of concerns that public health authority could be used to discriminate against immigrants. The 1944 version was enacted to shift quarantine authority from the president to the surgeon general.
Nevertheless, the order issued by the CDC, along with an accompanying rule published in the Federal Register, specifically bars just one category of people from entering the US: those crossing the borders from Mexico or Canada who would be held in congregate settings by US authorities, a category the order says will be primarily migrants who arrive without visas.
US law gives asylum seekers the right to seek asylum upon arrival in the United States, even if they arrive without inspection or prior authorization. Before expelling people who arrive in the US, US Customs and Border Protection (CBP) is legally required to conduct nonrefoulement screenings to ensure they do not expel people who need protection. Those screenings are designed to ensure that no one risks torture or other likely serious harm after being expelled and returned to their country of origin.
Since March 2020, Customs and Border Protection has carried out more than 642,700 expulsions under the order, typically without conducting the required screenings. Human Rights Watch research shows that the consequences of returning asylum seekers to danger can be catastrophic–resulting in sexual assault, torture, and death.
A leaked Border Patrol memo providing guidance on the order’s implementation instructs agents to process migrants for expulsion as quickly as possible, while providing a small exception for migrants who affirmatively present a claim for protection under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Agents have unchecked authority to then determine whether to refer those migrants for an interview with an asylum officer.
Human Rights Watch has previously witnessed and documented CBP agents performing illegal “turnbacks” of migrants exercising their right to seek asylum. Human Rights Watch has also found agents have failed to refer for interviews with asylum officers people who have expressed a fear of return to their country of origin, and instead rapidly deported them to potential danger. Giving CBP agents even greater power to unilaterally and summarily decide claims under the expulsion order risks further wrongful return of people who may be refugees.
Migrants are either expelled to their country of origin or to Mexico, even if they are not from Mexico and even if they do not speak Spanish. In some cases, US border agents turn migrants directly over to Mexican immigration authorities, who then immediately detain and deport them. There are several reports that Haitians and Indigenous people who do not speak Spanish were expelled by US authorities to Mexico, where they are particularly vulnerable as language differences create barriers to finding transportation, housing, case management, and daily necessities.
In November 2020, a federal district court blocked application of the order to unaccompanied children, a decision an appeals court subsequently stayed. Though the Biden administration vowed not to again apply the expulsion policy to unaccompanied children arriving at the border, at least 13,000 unaccompanied children, for whom additional special protections were supposed to apply, had already been expelled by the time of the court’s injunction.