Call to Action,  Shoulder to Shoulder

Call to Action: End Using Title 42 as Border Immigration Policy

May 10, 2022 /

In March 2020 the Trump administration implemented Title 42, part of the 1944 Public Health Service Act, which “allows the government to prevent the introduction of individuals during certain public health emergencies.” This policy was not recommended by the Centers for Disease Control and Prevention (CDC) to reduce the spread of COVID-19 and has enabled both the Trump and Biden administrations to ignore long-standing norms and laws related to the processing of asylum seekers at the U.S. border.

TO DO

Contact your members of Congress requesting their support for our administration’s plan to end the use of Title 42 at the border on May 23. You can find instructions and suggested scripts here.

BACKGROUND

Following World War II and the Refugee Convention of 1951, the U.S. began accepting petitions of asylum at the border under Title 8. Seeking asylum — protection granted by a nation to someone who has left their native country as a refugee fleeing persecution — is a legal option according to national law and international agreements.

However, beginning in March 2020 as an emergency measure to reduce the spread of COVID-19, the Trump administration began using the Title 42 section of the Public Health Service Act to block Title 8 asylum petitions. Public health officials and experts consistently note that this interpretation and use of Title 42 is not about public health but is rather an attempt to unjustly expel refugees and asylum seekers; Laura Collins of the Bush Presidential Center writes, “Title 42 is public health policy masquerading as immigration policy.” As the United Nations High Commissioner for Refugees (UNHCR) noted in November 2020, “Measures restricting access to asylum must not be allowed to become entrenched under the guise of public health. . . . [I]t is possible for a country both to protect the public health of its people and to ensure access to territory for people forced by violence and war to flee their homes.”

Despite these expert evaluations and our nation’s improved abilities after two years to detect and limit the spread of COVID-19, the Biden administration has continued to rely heavily on Title 42 to deny meaningful access to asylum. Continued misuse of powers associated with public health creates the risk that health mandates will be mistrusted in the future, when legitimately necessary.

Recently, the Centers for Disease Control and Prevention (CDC) and the Department of Homeland Security (DHS) announced that the Title 42 order would be lifted on May 23. However, some members of the public are concerned that lifting the health order will result in an unmanageable increase in immigration across the southern border. These concerns must be balanced against MWEG’s Principles of Ethical Government (PEG), including respect for the rule of law, equitable due process, and succor and relief to those seeking refuge. Congress can uphold ethical government by collaborating on bipartisan, effective, and common-sense solutions at the border.

Rule of Law and Equitable Due Process

Using Title 42 without a public health necessity is not consistent with political norms (see PEG 1a) and is in direct opposition to international council and national laws on receiving people seeking asylum (see PEG 1f). National security must be implemented in a way that upholds due process and the right to liberty equitably (see PEG 2c).

International laws regarding refugees were established after World War II through the 1951 Refugee Convention and its 1967 Protocol, which forbids a country from returning an asylum seeker to a country where his or her life or freedom is threatened. The U.S. ratified these international agreements, and in 1980 the Senate unanimously passed the Refugee Act, legally adopting the Convention’s definition of refugee and establishing a system for granting legal asylum in the U.S. These agreements were not made lightly and should not be discarded lightly.

The current use of Title 42 is problematic because it ignores national and international law and denies asylum seekers due process. Regardless of claim, the Trump administration was, and the Biden administration is, expelling the majority of migrants. Since we began using Title 42 in this way, people seeking asylum have been turned away 1.7 million times at the U.S.-Mexico border; 1.2 million of these rejections have been under President Biden’s tenure (though it’s important to note these numbers include a marked increase in repeat crossers). These expulsions to Mexico can lead to incidents of kidnapping, torture, rape, and other violence. Title 42 fails to protect vulnerable people and also incentivizes cartels and human smugglers to profit from and abuse them.

When due process is ignored, policies are applied inconsistently. For example, under the Biden administration, Haitians, hoping to be granted the Temporary Protected Status (TPS) announced in May, made their way to the southern U.S. border only to be sent back without consideration under Title 42. Daniel Foote, the U.S. special envoy to Haiti, resigned rather than be associated with this mass expulsion. Human and civil rights leaders decried this disparate treatment of Black and Haitian refugees. And two members of Congress recently asked the Biden administration to end Title 42 and cease deportations to Haiti.

Succor and Relief

Discontinuing the use of Title 42 at the border and allowing migrants to apply for asylum fulfills our moral responsibility to welcome and provide relief to refugees fleeing war, violence, persecution, and natural disaster, regardless of race, nationality, or religion (PEG 3d).

Much more humane treatment and policy has quickly been created for Ukrainian asylum seekers affected by Title 42. In March 2022, after news that desperate Ukrainians fleeing war were being turned away at the southern border, Customs and Border Protection (CBP) authorized a specific exception to Title 42. Ukrainians were then allowed to make asylum claims, leading to a reported increase of Ukrainian attempts to cross during March. After processing 9,926 Ukrainian asylum claims in February and March, DHS announced in April that Ukrainian asylum seekers can now enter through the Uniting for Ukraine streamlined sponsorship program, noting that those presenting themselves at the border ”may be denied entry and referred to apply through this process.”

We can mobilize quickly in similar ways for others who are fleeing similar circumstances, regardless of race, nationality, or religion. As the Bible teaches, “[I]f a stranger sojourn with thee in your land, ye shall not [oppress] him. . ., [but] thou shalt love him as thyself” (Leviticus 19:33-34). Though borders cannot be left wide open, we can make humane choices and follow good practice set in place by legislation and rule of law. When we do not, desperate migrants may be forced to return to the very circumstances and abusers they were fleeing, or worse.

The Time Is Now

“Government institutions and political norms that promote deliberation, reduce polarization, and stimulate compromise among competing perspectives should be safeguarded and, where lacking, adopted (see 3 Nephi 7:1-6 and 4 Nephi 1:15-17).” (PEG 1e)

No one can deny that the flow of immigrants at the border has increased and will likely continue to increase once the use of Title 42 is discontinued. Though tardy, the current administration has recently been hard at work developing plans to effectively reduce migration, streamline processing, and fund programs to manage the expected increase. As Rep. Veronica Escobar of Texas expressed, Congress can respond in turn: “Let’s work together on addressing this as lawmakers. Title 42 shouldn’t be used as a substitute for real immigration policy.”

Encourage your legislators to support the end of the use of Title 42 at the border. Instead of rule by executive order and misapplied policy, our members of Congress can work toward long-overdue legal, ethical, common-sense policy to manage the flow of migrants and asylum seekers at the border.

FURTHER READING