Title 42 of the Public Health Service Act of 1944 allows federal health officials to prohibit people and goods from entering the country in the event of a pandemic. Title 42 was first invoked by President Donald Trump in March 2020, during the beginning of COVID, allowing deportation of anyone entering the United States from Mexico or Canada before having the opportunity to seek asylum in the United States. The administration justified this by arguing that it would prevent the spread of COVD-19. Again, this year in September many migrants tried to enter the United States through the Del Rio border and authorities have been expelling them without allowing them to seek asylum, may critics of using this policy claims that the use of this policy is not required as it violets the rights of the refugees. In this article, I have attempted to analyse if Title 42 is being used as a genuine concern or as a policy to deport migrants and refugees.
President Joe Biden has been untangling many Trump administration policies aimed at both legal and illegal immigration, but Title 42 has remained in place due to the COVID-19 pandemic and an increase in migrants attempting to enter the United States through the southwest border. It has expelled thousands of adults and families under Title 42, claiming it is a public health measure and an immigration policy.
For years, Haitian migrants have been arriving at the US-Mexico border, primarily to escape economic hardship. According to the United States Department of Homeland Security, approximately 1,401 Haitian migrants were transported on government flights to Haiti in September this year, and all other migrants who were in the United States were expelled under Title 42.
Thousands of Haitian migrants have recently attempted to cross the Del Rio border for unknown reasons, but authorities have begun expelling them without allowing them to seek asylum, prompting many civic organisations, including The American Civil Union, to file a case against the government, and a federal judge ruled that the use of Title 42 in this manner is illegal, but the government remained defiant.
Use of Title 42 in 2021
Title 42 of the United States Public Health Code has been in effect for nearly 130 years, but it has never been applied to immigration, and the claim made by both the Trump and Biden administrations is frequently interpreted as an excuse to asylum seekers. Asylum seekers and unaccompanied children are entitled to humanitarian relief, and the US government has established a procedure to determine their right to stay in the US but under the illegitimate use of this policy, they are fled back to their country.
It is stated in the Rules for Refugees and Unaccompanied Child Asylum Seekers that they should be given extra protection, and before the imposition of Title 42, unaccompanied child asylum seekers were taken to the Office of Refugee Resettlement and were also allowed to avail legal services, but since the imposition of Title 42, they have also been subjected to detention. Then, according to the P.J.E.S ruling District Court, the children should not be subjected to Title 42, and the Biden administration has confirmed that the policy does not apply to children.
Many human rights and immigration lawyers have labelled US government actions as ‘double standard’ claiming that while US citizens are allowed to travel to Mexico without requiring vaccination or a COVID test, Haitians are mistreated and sent back in the name of public health concern. They believe that reforms in the policy are needed immediately.
In May of this year, the US government acknowledged that it is not safe for Haitians to remain in their country due to human rights violations and political unrest and will give them Temporary Protected status in the USA. Despite the US government recognizing the difficulties, Haitians will face in their county the recent horrifying videos from Del Rio showed white federal agents on horses wielding long reins chasing black migrants and people from Haiti, Africa, and Central America. This demonstrates racial and ethnic discrimination, as well as the use of Title 42 as an excuse for public health safety. The main goal is to deport Haitian migrants and asylum seekers because there are many other travellers’ who can enter the United States without difficulty, making the use of Title 42 discriminatory.
Title 42 was created to be used during a Public Health Emergency, COVID-19 is a life-threatening disease that has claimed lives, but we can see that things are starting to improve, and people are travelling to different places. In the United States, the government is allowing people who are vaccinated to enter the country but extends Title 42 only to asylum seekers even if they are vaccinated and ready to follow COVID guidelines.
Moreover, as a part of the United States ‘Six-Step Strategy,’ new flights were scheduled to transport migrants back to Haiti, and they were warned that if they did not return, they would face harm. Many civil society organisations, including Human Rights Watch, raised concerns about human rights to President Joe Biden. When Haitian asylum seekers were transported by flight in the past, they were detained at the US Naval base in Guantanamo Bay and Cuba.
Health Experts claims that there is no evidence that the policy allows for the expulsion of the refugees to prevent the spread of COVID-19, and they argue that the spread could increase by mishandling of the Customs and Border Protection (CBS) that is by detaining thousands of migrants and not offering them COVID-19 test.
Immigrants and human rights advocates will continue to fight against the unlawful use of Title 42, and if Biden’s administration continues to use Title 42 in a discriminatory manner and justifies its use on the grounds of a Public Health Emergency, it will fail to follow its policy of achieving racial equity in the country and enacting anti-racism laws and policies.
Major Legal Concern
The unlawful use of Title 42 has raised many concerns related to the Refugees’ Rights both in International and US laws to protect the asylum seekers. The US has legal obligations towards these treaties, which are, the 1951 Convention and its 1967 Optional Protocol Relating to the Status of Refugees and also the 1984 Convention against Torture, these treaties prohibit the United States from returning migrants to countries where they live at risk of life, torture or persecution, this means that the people must be given a chance to enter the US territory and should be given all the opportunities to prove why should they be given a chance to seek asylum and protected under the US. Moreover, the US has violated the Refugee Act of 1980 which is its law that is incorporated in the US Constitution and is also more or less parallel with the legal framework given in the International Laws’ for protecting Refugees
What could have been done By the US Government?
COVID-19 situation is still not good in many parts of the world, and it can be understood why the US government is not allowing immigrants in the country, their concern is genuine but it is not expressed legitimately, the use of Title 42 is not required in these conditions as now the things are changing people are travelling to different parts of the world, in fact, people are allowed to travel to the US as well, provided they are vaccinated and follow all the COVID guidelines, the same should be allowed for immigrants as well because it’s necessary for them as it will uphold their rights.
The law Title 42 has never been used before to evict people from the border, it was first used by Trump Administrators last year in March to bar asylum seekers and is continued by the Biden’s government. The government could have applied the laws on the Rights of Refugees and expanded the opportunities for them to apply to seek asylum, as it would be fair to the Haitians who after almost a decade of struggle were not able to seek asylum in the USA. The USA could protect the refugees and ensure their safety by giving a Temporary Protected Status designation.
It could have used the Deferred Enforced Departure (DED) it was under the Presidentship of Bill Clinton in 1997, during the political fallout in the US. It was made to prevent the deportation of migrants for a particular period.
The Biden administration has made reforms in the asylum-seeking process which addressed different areas of problem that the asylum seekers were facing, its root cause and solution to correct those things, and it showed their desire to make the policies equal for all but then without proper resources, the reform could not be implemented properly. And what is happening this year is opposite from the agenda to make non-discriminatory policies.
The US government needs to sympathize with refugees and give them humanly treatment, given the economic downfall and political chaos they are facing in their home country; they shouldn’t be detained after an absence of decent life there.
Americans and their policies broadly recognise the rights of migrants, refugees, and asylum seekers, but after seeing the happenings in Del Rio generated a backlash among the people, which will cause major political repercussions to them and will also help the administration’s to work upon pro-immigration policies.
Author(s) Name: Nishka Kapoor (NALSAR University of Law, Hyderabad)