Biden administration rescinds Title 42

international politics, national politics, Politics

This article was written in collaboration with the Foreign Policy Youth Collab (FPYC) , an organization striving to bridge the gap between politicians and teens across the political spectrum.

Header Image: US News

On Friday April 1, 2022, the Centers for Disease Control and Prevention (CDC) announced that May 23 will usher in an end of Title 42, this being an arguably nontraditional marker by the CDC of the U.S. emerging from a two-year-long pandemic. Title 42 was enacted for the first time in the nation’s history on March 20, 2020, at the start of the COVID-19 pandemic by the CDC as ordered by former Vice President Mike Pence. With an end to Title 42 in sight, it would be important to clarify what is to come next in immigration trends, and furthermore, an evaluation of whether Title 42 achieved its intended purpose in the first place.

What is Title 42?

The Title 42 Health and Public Wealthfare Act was originally passed in July of 1944 in response to the influx of soldiers during WWII returning to the United States when they were infected by tuberculosis and influenza. Thus, Title 42 addresses the “regulations providing for the apprehension, detention or conditional release of individuals to prevent the introduction, transmission or spread of such diseases,” according to section 264 b of the act.. Under Title 42, the president and CDC have the right to order a halt, holding or denial of immigrants from entering a country during a period of high risk infection. Some persons can apply for exclusion from the title in extreme circumstances, however, the plaintiff requires a medical screening if the excuse is to be applied. 

Similar practices of health screens had been put in place at ports of immigration even prior to Title 42’s enactment. During the Spanish Influenza in 1918, for example, although immigration rates were already much lower than in previous years, inspections of health were put in place in high concentrated migration ports, such as Ellis Island. However, the National Library of Medicine reports that rejection rates of immigrants on medical grounds in 1918 were estimated to be only 2 percent to 3 percent. The low rejection rates of immigrants, even in the height of a pandemic, in 1918 contrasts what we are witnessing today. In 2020, it was reported by the Migrant Policy Institute that over 1.7 million expulsions (or apprehension of immigrants at the U.S-Mexican border) were carried out. This means that immigrants and asylum seekers alike were expelled back to Mexico, or their countries of origin, by the United States without the opportunity to argue their case. This is the highest record of apprehensions at the U.S-Mexican border recorded in history.

What are Title 42’s consequences?

The most important result to note is that immigration into the United States has not decreased one bit, but instead, it is the manner in which immigrants are entering the U.S. that has changed following Title 42. One way in which entry has changed under Title 42 is that it can occur repeatedly. Under Title 42, immigrants are not deported, but simply returned back to Mexico where they have the opportunity to try to enter several more times, sometimes even on the same day. That is why the highest record of apprehensions of immigrants in one year in the United States was reached under Title 42. In October 2020, 40 percent of all immigrants apprehended had crossed the border repeatedly; while in 2019, this figure stood at just 7 percent. In this way, Title 42’s attempt at preventing border apprehensions had an inverse effect. 

The other way in which immigration has changed is how immigrants get into the country, even under Title 42. Undoubtedly, Title 42 did not discourage “illegal” entries into the United States, as higher concentration and regulations in safe points of entry at U.S. borders only corral immigrants into less regulated points of entry, at times dangerous ones.  

When the title was enacted in March of 2020, the United States and Mexico agreed that adult migrants who were denied entry into the United States would be turned back to Mexico. Shortly after, the Biden Administration took over in 2021, and in February, Mexico announced that they no longer would accept families with children under seven who were set to be expelled from the United States during Title 42’s application. As a result, the Biden administration was either forced to fly these families back to their country of origin aside from Mexico, were permitted asylum in the U.S., or were placed into ICE detention centers for months at a time. This is what resulted in Vice President Kamala Harris announcing to potential immigrants and asylum seekers during her visit in Guatemala to not come in the summer of 2021. 

What are the concerns about Title 42 and lifting it?

Lawsuits against the U.S have been taken up on each side of the aisle about receding Title 42, however, for different reasons. In summer of 2021, The American Civil Liberties Union, Texas Civil Rights Project, RAICES, Center for Gender & Refugee Studies, Oxfam, ACLU of Texas, and ACLU of the District of Columbia​​ filed suit against the United States after the negotiations to end Title 42 with the Biden administration turned sour. In September, the federal court ruled that found that Title 42 expulsions are “likely unlawful” . The Biden administration was quick to appeal that ruling in hopes to continue turning away refugee families from the border. This appeal has reached a D.C circuit court with the case continuing into the first year anniversary of President Biden’s inauguration. Democrats, human rights advocates, and even the CDC itself push for the executive branch of the United States to rescind Title 42 has been a long time coming, bearing in mind all of Title 42’s effects. 

The act faced scrutiny as human rights advocates describe that pushing immigrants out of one disease inflected country into another does not properly address the issue of the migrants safety, nor America’s safety. Rather, it is a short-term solution by politicians to “protect” the citizens of one country at the expense of the safety of the ones trying to enter.  

Furthermore, human rights advocates argue that Title 42 does not address the crisis asylum seekers are fleeing as a result of even amidst a pandemic. Reflecting back on all the major conflicts that occurred even during the two year pandemic such as the earthquake and assasination of the president in Haiti, ongoing violence in Central America, and now the struggle of Ukranians, asylum seekers have not stopped seeking asylum because of the pandemic. It is sighted by human rights advocates that Title 42 in fact is a violation of international law on the part of the United States as it is actively denying the acceptance of asylum seekers which all countries must uphold. Article 33(1) of the 1951 Refugee Convention protects any “refugee” “against refoulement if his or her ‘life or freedom would be threatened because of race, religion, nationality, membership of a particular social group or political opinion’.”

As summarized in the legislation, immigrants are guaranteed the right to have their application for asylum reviewed when they request it at a U.S. port of entry. However, under Title 42, all immigrants, including asylum seekers, have been turned away from U.S. ports of entry without question of their situation except for some special occasions. The Trump and Biden administration alike have argued that Title 42 supersedes the Article 33 provision’s guarantee of rights for asylum seekers. Considering this is the first time in the nation’s history in which Title 42 has been put to work, there are still a lot of questions surrounding the extent and power of the title. A webinar was held in May of 2021 by the Physicians for Human Rights on the issue of Title 42 where a wide range of experts from human rights organizations around the country contributed answers to this question. 

One of those experts was Lee Gelernt, the deputy director of the American Civil Liberties Union’s Immigrants’ Rights Project. Gelernt commented that even in Title 42’s creation back in 1944, it did not authorize expulsions, especially of asylum seekers. As further stated by Gerlernt, “[Title 42] has never in its history throughout the worst pandemics ever been used to send people back… Even if it could somehow be construed to authorize deportation, it cannot override asylum laws.” Gelernt’s comments reign true as at the time the title was enacted in 1946, Title 42 only addressed the prevention of immigrants posing the risk of infection from entering a country, not what would happen when they are within the United States.

Title 42 has also been criticized by progressives as not addressing the safety concerns for denying immigrants entry into the United States as well as the threats posed when forcibly returning them to their country of origin. It is cited by the Human Rights First organization that of the 1.7 million expulsions occurring under Title 42, of which at least 9,886 cases of kidnappings, tortures, rapes and other violent attacks on people occured as a direct denial of entrance into the U.S. These figures do not even yet take into account the expulsions where an immigrant was deported to a country they fled from for fears of persecution. 

Conservatives feel just as strongly as liberals about rescinding Title 42, however, in a contrasting way. On the other side, conservatives are concerned that rescinding Title 42 would result in an increase in infection rates by permitting COVID-positve illegal immigrants into the country, as Texas Governor Greg Abbott put it. In fact, on Sunday April 4, the state of Louisiana, in conjunction with Arizona and Missouri, filed suit against the Biden administration for rescinding Title 42 for what it claims is “an imminent, man-made, self-inflicted calamity: the abrupt elimination of the only safety valve preventing this administration’s disastrous border policies from devolving into an unmitigated chaos and catastrophe,” as quoted in the filing. What the GOP attorneys write into the filing is a concern echoed throughout the United States. However, what the filing does not address is what should instead be the answer. Eventually the COVID-19 pandemic will formally conclude and the recession of Title 42 would be consequently imminent. Title 42 is not meant to be a permanent solution to migration into the U.S. as it is only a preemptive measure to protect the integrity of health in the U.S. during increased times of infections.

The CDC fought against enacting Title 42 when it was first discussed considering evidence remains unfound that prohibiting immigrants from entering a country has any real effect on the transmission of a virus. Dr.Fauci echoed this message as well as further epidemiologists and health experts. The Columbia University Public Health program found that “the Omicron variant highlights that community transmission within the US, and not introduction of the virus from Mexico, is driving the spread of COVID-19, and that public health authorities need to focus on mitigation measures that are known to work. Title 42 is not among these measures and, if anything, makes matters worse”. Nevertheless, stigmatizations and scapegoating immigrant populations as the contributor to high infection rates is not uncommon in American culture. A poll by Axios was released in the summer of 2021 which observed a trend between vaccinated and unvaccinated persons’ placement of blame for high infection rates of COVID-19. Interestingly, 75 percent of vaccinated Americans blamed unvaccinated Americans for high infection rates, while unvaccinated mostly blamed COVID-19 transmission on foriegn travelers with over 25 percent agreement. Not only are the results of the Axios poll demonstrative of today’s political climate but further telling of attitudes towards immigrants and their role in American public health that can lead to stigmatization.

Human rights advocates highlight that politicians play into the attitudes exemplified in the poll when naming a disease and or virus after an entire ethnic group or country as witnessed when influential politicians referred to COVID-19 as the “china-virus.” Human rights advocates argue that naming a virus after a country can pose real harm especially to people of that nationality. This was witnessed throughout the pandemic when the FBI found that in 2021, hate-crimes directed at Asian Americans spiked at a rate of 73 percent and the rate of other hate crimes rose by 13 percent that same year. 

What lifting Title 42 in May means

The most encouraging takeaway about the rescission of Title 42 is that the world may be emerging from the tail end of a two-year pandemic which has rattled the lives of billions. One side however, argues that rescinding Title 42 signifies chaos ensuing as immigrants entering the United States will increase COVID-19 infection rates while the other side argues that this is a step in the right direction for human rights. Although there is still no conclusive evidence that the immigrants seeking asylum or entrance into the U.S. will restimulate infection rates of COVID-19 in the U.S., conservatives are not wrong in stating that the application of Title 42 has been leaving a storm of migration building up behind its border wall for two years. The commissioner of ​​Customs and Border Protection (CBP) aired his concerns after the announcement from the Biden Administration that lifting the policy will “likely cause an increase in encounters with illegal immigrants along the southern border”. However, many experts who disavow Title 42 argue that the potential numbers of encounters from rescinding Title 42 could not be more than the record high expulsions that occurred under the title. Furthermore,  it is important to highlight that the mass of people waiting for entrance into the U.S. is not more than to be expected at this time of year as there usually is a yearly trend of an increase in immgration to the U.S witnessed every spring. What remains up in the air is the Biden Administration’s handling of pending suits filed against it that advocate for and against Title 42’s rescission. How the administration seeks to navigate these legal battles will be especially pivotal for the legacy of the Biden administration and furthermore indicative of whether Title 42 can be applied in the future.

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