The Biden administration says it wants to undo Trump-era immigration policies, but officials have yet to rescind a controversial order that effectively closed the border to asylum seekers during the COVID-19 pandemic.
The White House is now at odds with several immigration and health-policy advocates who have repeatedly called for this policy to be stopped, arguing that the order endangers asylum seekers without a “public health justification.”
The Centers for Disease Control and Prevention issued the order—known as Title 42—at the beginning of the pandemic to severely restrict migrants crossing the border as a way to limit the spread of COVID-19 into the country. The policy initially applied to all undocumented immigrants, but its application to unaccompanied children was challenged in court.
On Feb. 17, the CDC released a notice that it will temporarily halt expulsions of unaccompanied children under the order.
But immigration and health-policy advocates argue that the entire order should be revoked. The Title 42 policy is under review by the CDC to determine whether it should be terminated, rescinded, or modified.
Clara Long, who specializes in immigration and border policy at Human Rights Watch’s U.S. program, said she was “incredibly disappointed” that the order is still in effect.
She added that the order is “deeply embedded in the xenophobic, anti-migrant, and anti-asylum ideology of the Trump administration, and every day that passes that the Biden administration keeps it in place is another day in which it’s adopting a Trump policy of the worst sort.”
Reps. Joaquin Castro, chair of the Congressional Hispanic Caucus, and Rosa DeLauro, chair of the House Appropriations Committee, want the Biden administration to move away from the policy.
“I continue to have significant concerns over expulsions under Title 42, particularly the lack of due process and lawful access to the asylum system,” said Castro in a statement to National Journal. “The Biden administration correctly reversed the Trump administration’s policy of summarily rejecting vulnerable unaccompanied children at the border, and I hope that policy will soon be expanded to include all asylum seekers in a safe and effective manner.”
The Biden administration defended in court the authority to limit border crossings during public-health emergencies.
“The public-health crisis is a dynamic situation in which the number of COVID-19 infections and the strain on healthcare systems is often in flux; in addition, new variants of the disease are rising and spreading, further impacting the public-health response,” wrote Justice Department officials in a briefing filed Feb. 22 to the D.C. Court of Appeals. “To combat COVID-19, CDC must have the flexibility and discretion to adapt its Order and the scope of its Order to respond to the changing public-health facts on the ground, based on its expert epidemiologic judgment.”
Several public-health and medical experts told Biden administration officials in a Jan. 28 letter that imposing restrictions on asylum seekers and other migrants “has no scientific basis as a public health measure.”
“I think it needs to be rescinded immediately,” said Joe Amon, a clinical professor at Drexel University’s Dornsife School of Public Health, in an interview with National Journal. “The fact is, the logic of this order, which says that people coming from certain countries across land borders pose a risk of introducing this disease into the U.S., it doesn’t really hold up if we’re not really putting in place other kinds of protections for people coming in via planes even if they have visas and have appropriate documentation.”
Public-health and epidemiological experts in December outlined alternative approaches to the border during COVID-19. The recommendations included minimizing delays and avoiding congregate situations during border processing. Families should not be held in detention or group settings but released to relatives or other contacts, per the recommendations.
While the CDC has stopped the expulsion of children from under the order, advocates allege that some kids were turned away when they showed up at a port of entry.
Homeland Security Secretary Alejandro Mayorkas told reporters at a White House press briefing Monday that when an unaccompanied child reaches the border “in between the ports of entry,” Border Patrol will apprehend the child and turn them over to Health and Human Services officials within 72 hours.
A government official, who did not want to go on record, said children who are encountered at ports of entry and between them are treated the same way: they are apprehended by border officials, processed at a border facility, and then turned over to HHS.
But Jennifer Podkul, vice president for policy and advocacy at Kids in Need of Defense, said this has not always been the case.
“There’s a separate emergency declaration that stops nonessential travel at ports of entry,” said Podkul, whose group advocates for unaccompanied migrant children. “There actually have been unaccompanied children who have been turned away at ports of entry.”
Long also said she heard accounts of children being turned away at ports of entry, although was not certain how widespread the issue was. “It’s not surprising to me,” she said. “It shouldn’t be happening, but I think this is one of things that the Biden administration needs to think very carefully about.”
“It would indicate that they’re sort of considering the continuation of a practice called metering, which is limiting the number of people who can enter a port of entry every day to seek asylum,” she added. “So that might be one reason why an unaccompanied child will be turned away, and that practice poses serious risks of harm to asylum seekers.”
Families and single adults that arrive at the border are still subject to expulsion under Title 42. Podkul said that the administration should consider an exemption for families seeking asylum.
“If they feel like they need to have a better assessment from the CDC about whether or not to withdraw Title 42 across the board, they could still say families and unaccompanied children should be considered exempt under the humanitarian clause that already exists in Title 42,” she said.
But Mayorkas on Monday urged patience as officials “rebuild the system from scratch” and added that families and single adults were being removed from the country under the Title 42 restrictions.
“I have to take this opportunity, at the same time, to reiterate a message that we have communicated repeatedly throughout, which is a message to those individuals who are thinking of coming to our border: They need—they need to wait,” said Mayorkas.