The Public Health Act must never again be misused to deport asylum seekers: Title 42

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For the editor – On April 1, 2022, the United States Centers for Disease Control and Prevention (CDC) decided to close a sad chapter in the organization’s history by ending the inhumane immigration policy known colloquially as of Title 42.1. The initial order, issued on March 20, 2020, invoked a rarely used provision of US health law – section 265 of title 42 of the US code – allowing the US federal government, for public health reasons, to turn back immediately and deport those arriving at the border seeking asylum2. The order was subsequently revised and renewed several times over two years by the CDC under the Trump and Biden administrations. The public health rationale for Title 42 was fallacious at its inception and at odds with the science on SARS-CoV-2 transmission and infection. By allowing public health to be militarized and used as a means to subvert the internationally recognized right to seek asylum, the CDC has set a disturbing global precedent that has undermined trust in public health institutions at precisely the time when the world needed it the most.

Since the early days of the pandemic, public health experts have noted that proven public health measures such as masking, social distancing, improved ventilation and testing can be layered on to enable treatment safely. asylum seekers at US borders.3.4. The Title 42 ordinance was enacted early in the pandemic over reported objections by CDC career scientists, and to date none have come forward to defend the action.5. The tenuous public health basis of the order was underscored by the thousands of other travelers – including tourists – who were allowed to cross the border each day with little or no public health measures in place, while the order continued to be applied for the sole purpose of deporting asylum seekers. Notably, in their August 2021 renewal order, the CDC stated that safe treatment is possible and is currently being implemented for unaccompanied minors. Yet extending these security measures to families and adult asylum seekers took more than seven months. Even as the science on COVID-19 evolved, the effective uses of testing and masking were demonstrated, and vaccines became widely available and promoted, there was no commensurate change in the enforcement of the ban. . Indeed, the Title 42 order remained in effect even as masking and vaccination mandates eased in the United States as the Omicron BA.1 wave subsided.

The misuse and misappropriation of public health language by the administration for immigration control purposes has caused incalculable harm to individuals and migrant populations. Several thousand men, women and children have been sent back to face threats to life and physical insecurity in Mexico and other countries6. Venezuelans have been deported to Colombia and thousands of Haitians deported to Haiti, a country which, according to the Biden administration itself, is “in the grip of a deteriorating political crisis, violence and a staggering increase in violations of human rights”.7. The human costs of these policies have been significant, with more than 9,800 kidnappings and other violent attacks (documented by Human Rights First) against stranded and/or deported migrants to Mexico since the Biden administration took office.8.

In March 2022, two conflicting court decisions highlighted the uncertainty and damage caused by the use of public health as a proxy for immigration policy. A federal appeals court has ruled in a case involving migrant families, noting that they could not be deported to countries where they risked persecution, and stating that “CDC Order § 265 looks in some ways like a relic of an era with no vaccines, few tests, few therapeutics and little certainty”9. Yet later the same day, a federal judge in Texas ruled that the Biden administration could not exempt unaccompanied minors from the order despite the CDC’s August 2021 update that outlined capacity and ability. government to safely treat this population. The dichotomy between the two decisions demonstrated the need for the CDC to provide clear leadership in using the evidence that exists – to reclaim from politicians and lawyers its position as the science-based public health authority it still has. summer – a decision that finally took place. April 1, with its decision to revoke the order. However, the termination will not take effect until May 23, 2022, inflicting even more harm on migrants and asylum seekers in the weeks to come.

The humanitarian emergency developing in Ukraine is a perfect illustration of the important role that asylum and international refugee protection play in protecting human life. Ukraine’s neighboring states have waived COVID-19-related travel restrictions to allow safe, unimpeded admission, thereby respecting both the letter and the spirit of international refugee law. European countries are balancing the current but manageable risks posed by COVID-19 with the need to protect the right to life and asylum of those seeking protection from violence and conflict.

In contrast, the United States singled out asylum seekers for banning and deportation. The Title 42 order was not only discriminatory and lacking in evidence, but also fueled the xenophobic trope that migrants are vectors of disease, fueling the stigma and discrimination that has sadly marked much of the US response to this pandemic.ten. At a time when public health and science have been under attack by the spread of misinformation and misinformation, the CDC, through its own misuse of public health to block the right to life-saving asylum, has further eroded legitimacy. so essential to confidence in our public health establishments. The harms caused by Title 42 will persist well beyond the revocation of the order. As this chapter draws to a close, it is imperative to ensure that the asylum processes that will be instituted will be fair and humane. And it is equally imperative to ensure that public health is never again weaponized against those who seek protection at the US border.

References

  1. US Department of Health and Human Services, Centers for Disease Control and Prevention (CDC) https://www.cdc.gov/coronavirus/2019-ncov/cdcresponse/Final-CDC-Order-Prohibiting-Introduction-of-Persons.pdf (April 1, 2022).

  2. 42 U.S. Code § 265 (July 1, 1944).

  3. Amon, J. et al. https://www.publichealth.columbia.edu/public-health-now/news/public-health-experts-urge-us-officials-withdraw-order-enabling-mass-expulsion-asylum-seekers (May 18, 2020).

  4. Backster, A. et al. https://www.publichealth.columbia.edu/research/program-forced-migration-and-health/letter-cdc-director-walensky-hhs-secretary-becerra-and-dhs-secretary-mayorkas-august-2021- title-42-0 (September 1, 2021).

  5. Dearen, J. & Burke, G. Pence ordered borders closed after CDC experts refused. Associated Press (October 3, 2020).

  6. American Immigration Council. https://www.americanimmigrationcouncil.org/research/guide-title-42-deportations-border (October 15, 2021).

  7. United States Department of Homeland Security Citizenship and Immigration Service. https://www.federalregister.gov/documents/2021/08/03/2021-16481/designation-of-haiti-for-temporary-protected-status (August 3, 2021).

  8. Human rights first. https://www.humanrightsfirst.org/resource/two-years-suffering-biden-administration-continues-use-discredited-title-42-order-flut (March 17, 2022).

  9. N Huisha-Huisha, et al c. Alejandro Mayorkas, et al. https://www.govinfo.gov/app/details/USCOURTS-caDC-21-05200 (2022).

  10. Markel, H. & Stern, AM Milbank Q 80757–788 (2002).

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MZ and KM developed the idea for correspondence and wrote the first draft. All authors provided important scholarly comments, participated in the editing of the manuscript, and approved the final version.

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Correspondence to Monette Zard.

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The authors declare no competing interests.

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Zard, M., McCann, K., Heisler, M. et al. Public Health Law must never again be misused to deport asylum seekers: Title 42.
NatMed (2022). https://doi.org/10.1038/s41591-022-01814-2

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