The Twin Crises of Public Health and Immigration: Assessing the Title 42 Order

The United States has long weaponized infectious diseases to direct racialized, derogatory epithets and to justify unfair treatments toward immigrants. In San Francisco, from 1900 through 1904, Chinese immigrants were subject to stricter and more prolonged quarantines, although there was no evidence that proved Chinatown to be a hotbed for the bubonic plague. Similarly, in the 1920’s in Los Angeles, the city painted Mexican Americans as bearers of the pneumonia outbreak by stereotyping them as poor, second class citizens, which resulted in their targeted quarantine. More recently, former President Trump referred to Haitian immigrants as “probably hav[ing] AIDS, and they’re coming into our country. And we don’t do anything about it. We let everybody come in…it’s like a death wish. It’s like a death wish for our country.” The recurring image of immigrants as carriers of disease in the United States is not a novel argument—it has been hurled at migrants time and again. Perhaps unsurprisingly, many of these tropes have been buoyed by the advent of the COVID-19 pandemic and the reinstatement of Title 42.

It’s been almost two years since the issuance of Title 42, a public health order that stipulates “suspending the right to introduce certain persons into the United States from countries where a quarantinable communicable disease exists.” The United States is a year into the Biden-Harris administration, which promised to reverse destructive asylum policies. The continuance of Title 42 remains inimical to the Biden-Harris Administration’s campaign promises and broader immigration agenda. Since its inception, Title 42 has effectively been utilized to bar asylum seekers on the southern border. The figure below shows trends illustrating that, since March 2020, the US Border Patrol has expelled thousands of asylum seekers without due process. In 2021, using the provisions of Title 42, the US Border Patrol’s expulsion rate never dipped below 60,000 individuals expelled per month.

Source: U.S. Border Patrol and Office of Field Operations Encounters

The deliberate enforcement of Title 42 has become inherently racialized. Since the installment of Title 42, 23% of Haitian migrants have been expelled. Human Rights Watch, a non-governmental organization that conducts research and advocacy to highlight human rights violations across the world, contends the implementation of Title 42 is a racial justice issue, because Black and brown migrants disproportionately face expulsion under the order. In particular, Haitian asylum-seekers fleeing political strife and destabilization were overrepresented in removal proceedings and in US flights back to their home country. Using Title 42 to put migrants on flights with little to no safety protocols not only exacerbates the public health crisis, but contradicts its purpose by placing individuals in environments where they are more susceptible to disease transmission. The Department of Homeland Security (DHS) knowingly proceeded with migrant removal processes despite the imminent danger they may face once they return—a prerequisite to be granted asylum. Consequently, Border Patrol agents have increasingly justified further surveillance along the southern border under the guise of Title 42, intercepting asylum seekers and preventing them from claiming asylum. Under Title 42, Border Patrol agents stoke the notion that asylum-seeking is an illegal process, which is factually incorrect, as it is protected under US law.

The Biden-Harris Administration willfully defers to the Centers for Disease Control and Prevention (CDC) to determine their stance on the public health order. Unfortunately, the CDC’s abject misuse of a public health crisis deters asylum seekers from their rights to seek protection under international and domestic asylum law. The order effectively exposes asylum seekers to precarious circumstances, abandoning them in their most vulnerable and perilous state. Contrary to this position, the CDC recently loosened mitigation measures by allowing travel for “non-essential purposes, including to visit friends and family or for tourism, via land and ferry border crossings” (DHS, 2021). CDC’s incongruent stance on mitigation measures props up a callous disregard for the humanity of asylum seekers in the name of public health while simultaneously easing domestic regulation for “business-as-usual.”

Title 42 has garnered critique from 242 migrant rights organizations, epidemiologists, and public health experts, who call for the order’s rescission, noting the policy is scientifically baseless and endangers families and individuals. The public health crisis born from the COVID-19 pandemic is a clear and present danger that must be addressed. However, it ought to be divorced from the equally clear and present danger that asylum seekers experience. In March 2022 the CDC permanently suspended Title 42 for unaccompanied minors, citing the “expulsion of unaccompanied non-citizen children is not warranted to protect the public health.” While these new developments are a step in the right direction, the CDC and the Biden-Harris Administration need to extend the suspension to all migrants. The asylum-seeking process demands courage in order to safeguard individuals from danger. The Biden-Harris Administration vowed, “will never turn our backs on who we are or that which makes us uniquely and proudly American.” The continuation of Title 42, in essence, serves as a mass deportation mechanism that turns its back on asylum seekers and denies families and individuals the chance to live free of danger and persecution.

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Isacson, A. (2022, February 17). A tragic milestone: 20,000th migrant deported to Haiti since Biden inauguration. WOLA. Retrieved March 13, 2022, from https://www.wola.org/analysis/a-tragic-milestone-20000th-migrant-deported-to-haiti-since-biden-inauguration/.

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Monette Zard, Michele Heisler. “The CDC’s Title 42 Order Fuels Racism and Undermines Public Health.” TheHill. The Hill, October 16, 2021. https://thehill.com/opinion/immigration/576956-the-cdcs-title-42-order-fuels-racism-and-undermines-public-health?rl=1.

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“Secretary Mayorkas to Allow Fully Vaccinated Travelers from Canada and Mexico to Enter U.S. at Land Borders and Ferry Crossings.” Secretary Mayorkas to Allow Fully Vaccinated Travelers from Canada and Mexico to Enter U.S. at Land Borders and Ferry Crossings | Homeland Security. Accessed February 20, 2022. https://www.dhs.gov/news/2021/10/12/secretary-mayorkas-allow-fully-vaccinated-travelers-canada-and-mexico-enter-us-land.