Biden Under Pressure Over ‘Public Health’ Border Expulsions
This article features our clients Drs. Scott Allen and Pamela McPherson and originally appeared here.
WASHINGTON — President Biden is coming under increasing pressure to abandon a Trump-era immigration rule that has sealed off the United States to most migrants during the pandemic, with human rights officials and two of the administration’s own medical consultants saying the measure endangers vulnerable families.
The policy, known as Title 42, allows border agents to turn away migrants at the southern border without giving them a chance to apply for protections in the United States. The order justifies the expulsions as a health measure to prevent the coronavirus from spreading in holding facilities.
On Monday, two physicians who work as consultants for the Department of Homeland Security sent a letter to members of Congress saying the rule has had the “perverse impact” of encouraging parents to send their children to cross the border alone, since Mr. Biden has chosen not to immediately turn away minors and instead is processing them into the United States. Most single adults and many migrants traveling together as a family, however, continue to be immediately turned around.
The complaint comes days after Filippo Grandi, the U.N. high commissioner for refugees, who rarely criticizes U.S. immigration policy, said the expulsions have had “serious humanitarian consequences.”
The Biden administration’s embrace of Title 42 highlights a difficult balancing act for the president: how to make good on his pledge to have a more compassionate approach to migrants fleeing poverty and persecution while managing a surge of people who want to come to the United States. The topic also leaves Mr. Biden open to political attacks from Republicans and moderate Democrats who say he risks losing control of the border.
Mr. Biden has promised that his administration would rely less on detention and more on programs that release migrants into the United States and track them to make sure they appear in immigration court. He has lifted various Trump-era restrictions, including a policy that forced migrants to wait in Mexico while their immigration cases are processed.
But Title 42 has drawn broad criticism from immigration advocates.
Human Rights First, a nonprofit advocacy organization, issued a report in April detailing hundreds of attacks or kidnappings targeting asylum seekers who were turned away as public health risks since Mr. Biden took office.
Vice President Kamala Harris, who is leading the administration’s efforts to improve the Central American region and deter illegal migration, has changed her view on the policy, with a White House official saying she supports it. But as a senator, Ms. Harris signed a letter with fellow Democrats that accused the Trump administration of “misinterpreting its limited authorities” under Title 42 by using the rule to turn away asylum seekers at the border.
White House officials declined to comment about Title 42 on the record. But a government official said the White House position was that the rule was necessary given the many Americans who still had not been fully vaccinated. The Trump and Biden administrations both have defended the policy as a “public health directive” rather than an immigration tool.
Xavier Becerra, the secretary of health and human services, told reporters Monday that the administration was reviewing the border rule, but offered no timeline for lifting it.
The administration is working to “address the various missions we have of protecting the public against further contraction of Covid, making sure that we enforce our immigration and border enforcement laws as best possible,” Mr. Becerra said.
But critics say the rule’s effect on vulnerable migrant families cannot be ignored.
In Monday’s complaint to members of Congress, Scott Allen and Pamela McPherson, who consult as “subject-matter experts” for the Department of Homeland Security’s Office for Civil Rights and Civil Liberties, said officials at the Centers for Disease Control and Prevention had found no legitimate basis for the rule when it was implemented in March 2020, citing a report by The Associated Press.
“There is even less of a public health justification now, when, more than a year later, arriving asylum seekers could be easily screened and tested, and currently those over 16 vaccinated, in a way that protects the public health,” the doctors wrote in the complaint, which was obtained by The New York Times.
A spokesman for the C.D.C. did not answer questions about the timeline for lifting the pandemic rule.
The complaint was based on the doctors’ previous work with the Department of Homeland Security. The doctors, who have made previous complaints against the Trump administration’s detention policies, also called for the federal government to end the detention of migrant minors and families, saying it causes trauma, suicidal behaviors and chronic medical diseases.
“While the current number of children in border facilities is dramatically lower, hundreds of children remain in detention at the border” and in federal custody, the doctors wrote in the complaint. “This is hundreds too many, as we know that those already released, and those who remain, will suffer the known, harmful effects of detention.”
Immigration and Customs Enforcement did not immediately respond to a request for comment.
The administration has not been able to use the rule to rapidly turn away every family that crosses the border, because of capacity restraints in shelters in Mexico and a change in Mexican law that prohibited the detention of small children. The Department of Homeland Security has recorded nearly 550,000 expulsions this fiscal year.
A senior department official said that top officials had discussed preparations for when the rule is eventually lifted, and that the administration had deployed more officers to the border to assist with a future increase in migrant processing.
The Trump administration had used Title 42 even before the pandemic to further its restrictive immigration policies. Stephen Miller, the architect of Mr. Trump’s immigration agenda, pushed to invoke the broad public health powers in 2019 when outbreaks of the mumps and flu spread in Border Patrol stations.
The Texas attorney general, Ken Paxton, sued the Biden administration this year, demanding that officials expel all migrants at the border, including children arriving alone. The lawsuit, filed with support from an advocacy group founded by Mr. Miller, claimed that processing migrants in the United States imperiled “the public health of Texas.”
But “it has never been the case that we could not safely process desperate asylum seekers and that it was necessary to expel them without hearings,” said Lee Gelernt, a lawyer with the American Civil Liberties Union, which has paused its own lawsuit over the expulsions to negotiate with the administration. “The Trump administration has been trying for four years to close the southern border and then jumped on the pretext of Covid to close that border. We cannot understand the Biden administration and the C.D.C. choosing to keep this policy. This inhumane policy.”
Through those negotiations, the administration has agreed to allow roughly 250 migrants deemed vulnerable by advocacy organizations to be processed into the United States.
But Mr. Gelernt said the administration was still leaving thousands of migrants stranded and pressing the administration for a timeline on lifting the policy.
“We’re at the point now where absent a plan to end Title 42, we probably don’t see what’s left to negotiate about,” Mr. Gelernt said.