On March 19 the Centers for Disease Control and Prevention (CDC) issued an order that blocked people from coming across the border. Under Title 42 of the Public Health Services Act border agents have been empowered to expel people as soon as they are encountered, with no access to traditional due process, and thus no ability to pursue asylum claims. The order has also been deployed to deny unaccompanied children access to asylum claims and other basic support. The result of this order is the expulsion of 154,000 people between March 19 and the end of August; 8,800 of them unaccompanied children. The vast majority of people are expelled back to Mexico, though people who are not from Mexico or Central America are sent elsewhere – presumably their home country, but there is little actually known about these folks. Some children, and families, mostly from Haiti, were found to have been put into hotels in Texas and Arizona until they could be removed. People detained, however briefly, under Title 42 are not given alien ID numbers (“A” numbers) that would allow them to be tracked while in detention. In effect, they disappear into the system until they can be removed. Family members are unable to find them, and they have no access to attorneys.
The impacts of Title 42 expulsions have rippled out in all directions from the border. In Mexico it has meant further crowding at the border among those trying to wait out the current crisis and continue their efforts to pursue asylum or other relief in the United States. Others have been forced back through Mexico to the border with Guatemala. Since March, they have been forced to wait until that border re-opens (it has in the last two weeks). Along the way, migrants look for places to stay in shelters that dot the landscape in Mexico. Staff with our partners in the Franciscan Network on Migration, for example, have noted there are more people traveling south these days than north.
Within the United States, Title 42 expulsions have led to a dramatic decline in detentions – as people apprehended at the border are now being expelled rather than transferred to Immigration and Customs Enforcement to be held while awaiting processing of their immigration status and/or asylum claims. Fewer people in ICE detention is a good thing, but the underlying reasons are not good – as people are in effect still being detained (halted from moving forward), but removed from oversight. Conditions within ICE detention facilities remain abysmal despite the lower numbers. Fiscal Year 2020 just ended, and during that year twenty-one people died while in ICE custody, the most in over 15 years. So, one of the chief stated purposes of Title 42 expulsions – to enhance safety for detention staff and detainees already in the United States, is patently false.
For those of us working on immigration policy, Title 42 was never a “good idea” simply administered badly. From the beginning it was clearly an effort to weaponize the COVID-19 response to do what the Trump team had otherwise been denied doing by the courts: Kill the asylum process and otherwise close the border to immigrants. It is also, one hopes this is because it is poorly understood, a popular policy, with a majority of U.S. Americans supporting it. That support has raised questions about whether Biden would actually suspend the order should he win the election. Given recent disclosures he absolutely must suspend the order.
Why? If one had any doubts about the duplicitous rationale behind Title 42 expulsions, news came this weekend that the CDC had originally refused to issue the order because there was no public health reason to do so. In fact, the order did not originate with the CDC at all. Rather, it was Trump advisor Stephen Miller’s brainchild. From the Associated Press:
“That was a Stephen Miller special. He was all over that,” said Olivia Troye, a former top aide to Pence, who coordinated the White House coronavirus task force. She recently resigned in protest, saying the administration had placed politics above public health. “There was a lot of pressure on DHS and CDC to push this forward.”
CDC doctors resisted implementing it for weeks because it would do no good in slowing the spread of coronavirus. Eventually Vice-President Pence was brought in to get it done. He called the CDC and told them to issue the order, “or else.” [“They forced us,” said a former health official involved in the process. “It is either do it or get fired” in AP report] The order was issued the next day.
“The decision to halt asylum processes ‘to protect the public health’ is not based on evidence or science,” wrote Dr. Anthony So, an international public health expert at Johns Hopkins Bloomberg School of Public Health, in a letter to Redfield in April. “This order directly endangers tens of thousands of lives and threatens to amplify dangerous anti-immigrant sentiment and xenophobia.”
The order was initially supposed to last for one month as an emergency measure – but that was a lie as well. Indeed, Miller made clear immediately upon implementation that he viewed this as a long-term approach.
Of course, amplifying dangerous anti-immigrant sentiment and xenophobia is precisely the point. It’s an election year after all. Calling the current administration out on its hypocrisy and lies seems almost pointless at this stage. But we take note in the hope that one day, perhaps, there will be some accountability. Shuttering the border and denying people legislatively guaranteed protections based on false pretenses has to be illegal….right? We’ll see.