Illustration by René Kladzyk/El Paso Matters

The mass expulsion of Haitian migrants in late September put increased attention on the Biden administration’s use of a contentious Trump-era practice — the rapid expulsion of migrants through Title 42, a provision of public health law.

Title 42 has proven contentious not only in the way it’s being used, but also in how it is described and understood by media and advocates.

The Biden administration has declared that Title 42 is not an immigration policy, but a public health policy. Immigrant rights groups, advocates and medical experts have called that an absurd mischaracterization and argued that its continued use is a thinly veiled effort to dismantle the asylum process at the border.

Since March 2020, Title 42 has resulted in the rapid expulsion of over 1 million migrants from the United States who were denied access to the asylum process. The policy is a COVID-19 mitigation strategy that is solely applied to migrants and asylum-seekers at the border, not other border-crossing populations.

A family from Michoacán, Mexico waited in the middle of the Paso del Norte bridge on Sept. 1; they were among the last groups to cross under a Title 42 exemption process for people deemed especially “vulnerable.” (René Kladzyk/ El Paso Matters)

This week, the nation’s top physician, Dr. Anthony Fauci, criticized the underlying premise for using Title 42. He said the idea that migrants at the southern border are contributing to the spread of COVID-19 in the United States is not supported by evidence, saying instead: “let’s face reality here.” On Monday, a top State Department advisor left his post after condemning the administration’s use of Title 42.

Here’s a timeline to understand how we got to where we are today with Title 42, walking through the relevant public health and asylum laws that frame current debates.

1893 — The National Quarantine Act 

Although efforts to quarantine in response to infectious disease have occurred since the founding of the United States, the 1893 National Quarantine Act was the first major legislation that granted federal authority to impose quarantines and enforce them through regulations. This law functioned as the precursor to the 1944 Public Health Service Act, and conferred similar authority to federal officials to screen and detain people at U.S. borders in order to mitigate the spread of infectious disease. These practices were often applied unevenly to populations based on race, citizenship and economic status in locations like Ellis Island or the U.S.-Mexico border in the early 20th century. 

1944 — The Public Health Service Act

Title 42 was codified into law as part of the 1944 Public Health Service Act, which consolidated and expanded existing public health law in response to World War II and concerns about the spread of malaria and tuberculosis by soldiers returning home from far-reaching corners of the world. The code granted the U.S. surgeon general the power to prohibit the introduction of people to the United States who pose a danger associated with communicable disease.

Patrick Baron, an epidemiologist and professor of public health at Western Carolina University, said the 1944 law was geared toward allocating money from the federal budget to fighting infectious disease. 

“Quarantining has (always) been … in the toolbox of controlling infectious disease where all of this legislation originates, but it kind of matured upwards from the local level to the federal level,” he said. The spirit of the original law was geared toward screening people for infectious disease at the border, not expelling them without determining whether they had an infectious disease, he said.

1948 — The Universal Declaration of Human Rights establishes the right to seek asylum

The horrors of World War II and the Holocaust inspired a coalition of countries to form the United Nations and take a firm stand against human rights violations.

Eleanor Roosevelt, widow of President Franklin D. Roosevelt, chaired the committee for drafting the Universal Declaration of Human Rights, which was the first major U.S. commitment to uphold a right to seek asylum. “Everyone has the right to seek and to enjoy in other countries asylum from persecution,” it read.

The right of asylum has been further upheld by the United States in international laws including the UN 1951 Convention and the 1967 Protocol, which defined the legal obligations that nations have to provide asylum to those fleeing danger or persecution in their home country.

1952 — Immigration and Nationality Act 

This legislation expanded and codified medical screening standards for immigrants, requiring medical examinations for visa applicants. Similar to the way Title 42 has been used in recent years, a section from this law, 212(f), was used during the Reagan administration to block Haitian asylum seekers from entering the United States. It was also invoked during the Trump administration during the 2017 travel ban directly at primarily Muslim countries.

1980 — Refugee Act of 1980 

Although the United States had made international law commitments upholding the right to seek asylum, the Refugee Act of 1980 was a significant national legislative act that incorporated that right into the U.S. immigration system.

It delineated two paths for gaining refugee status: as a resettled refugee (applying from out of the country) or as an asylum seeker (applying at the border or within the United States). Because of this legislation, it is legal to cross the border to seek asylum regardless of whether at an official port of entry or not.

The legislation also established that applicants for asylum have a right to a process that determines whether they have a credible fear of persecution in their home country and grants them safe haven in the U.S. while they await a decision in their asylum case.

A Border Patrol agent directs migrants expelled under Title 42 into Juárez on March 24. (Corrie Boudreaux/El Paso Matters)

2019 — Stephen Miller attempts to use Title 42 during mumps outbreak

The New York Times reported that Stephen Miller, an advisor to then-President Trump, sought legal justifications for halting access to the asylum at the border within the first six months of the Trump presidency. Miller attempted to employ Title 42 during a 2019 outbreak of mumps at Customs and Border Protection and Immigration and Customs Enforcement facilities for migrants in 19 states.

Title 42 was later referred to as the “Stephen Miller special,” by former aide to then-Vice President Mike Pence, Olivia Troye, an El Paso native who oversaw the White House coronavirus task force.

“It was clear from the beginning that … Trump’s border and immigration policy was very much led by Stephen Miller,” said Shaw Drake, an attorney with the American Civil Liberties Union of Texas. “They had spent their entire administration searching for mechanism after mechanism to cut off access to asylum at the border.”

March 2020 — Title 42 invoked at start of COVID-19 pandemic

On March 20, 2020, an order was announced by the Department of Health and Human Services to allow the director of the Centers for Disease Control and Prevention to use Title 42 as a way to stop “the introduction of (a communicable) disease into the United States.”  Then-CDC Director Robert Redfield announced a directive to stop people from entering the United States who were coming from “Coronavirus Impacted Areas.”

This order was not applied to U.S. citizens coming from those same nations, which led to outcry from advocates and medical professionals that the outcome was a denial of the right to asylum at the border.

“The idea that you can selectively apply a quarantine violates the entire concept of a quarantine,” said Baron, the professor at Western Carolina. “You’d have to screen everybody and selectively quarantine the positive cases in order to make a public health justification (for Title 42).”

At the time, the top doctor for the CDC had argued with the Trump administration that there was not a “valid public health reason” for the order, the Associated Press reported. Former Pence official Troye said there was “a lot of pressure on DHS and CDC to push this forward.”

August 2021 — Biden administration indefinitely extends Title 42 order 

A CDC order on Aug. 2, 2021, announced that the Title 42 order would remain in place until “the danger of further introduction of COVID-19 into the United States from covered noncitizens” ceased.

In a legal filing on that same day in a lawsuit brought by the ACLU challenging Title 42 expulsions, former Biden official David Shahoulian defended the use of Title 42. He cited heightened COVID-19 incidence among migrants and the difficulty of social distancing in detention facilities as justifications for its continued use.

September 2021 — Federal court rules Title 42 family expulsions unlawful

On Sept. 16, a federal judge ruled that Title 42 expulsions were illegal. Although the ruling only applied to expulsions of migrant families, the judge’s decision said that Title 42 does not give the CDC the authority to expel migrants at all. “Section 265 simply contains no mention of the word ‘expel’ — any synonyms thereof — within its text,” the judge’s ruling said. Almost immediately, the Biden administration appealed the ruling, which was ultimately successful.

“We are continuing to expel people coming from a range of countries, as we are continuing to apply Title 42, because there is a global pandemic that is ongoing,” White House press secretary Jen Psaki said during a Sept. 22 press briefing. In the days following the initial court ruling, the Biden administration expelled nearly 4,000 Haitians to Haiti — a nation rife with political violence and upheaval.

Lidia, a Guatemalan woman, crosses into Juárez with her 1-year-old daughter along with other migrants who were expelled from the United States under Title 42 on March 24. (Corrie Boudreaux/El Paso Matters)

“It’s truly unfortunate that the Biden administration has chosen to adopt really the absolute worst of the Trump-era policies as its own,” said Drake, who is co-counsel on the lawsuit challenging Title 42 expulsions. “But given their defense of it in court, their ongoing efforts to maintain their legal authority to unlawfully expel families and put them in harm’s way, they have adopted that policy as their own.”

Baron said that, from a public health perspective, considering the border a threat at this point is “too little too late.” He cited higher COVID-19 rates among Americans in South Texas than rates reported among migrants at the border, and said universal screening would have been a justified public health approach, not mass expulsion.

“Anybody who’s crossing that border should be screened. We already do this for a host of other infectious diseases based on where you’re coming from,” Baron said.

“If there’s the will to (expel) people, where is the will to actually take public health action that would be meaningful?” he asked.

Cover illustration by René Kladzyk/El Paso Matters

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René Kladzyk is a freelance reporter who also performs music as Ziemba. Follow her on Twitter @ziembavision.