Israel will remain Netanyahu’s even if he is no longer prime minister

President Joe Biden ran for office on a platform that included respecting science, promoting public health and restoring humanity to the rule of law to our immigration policies. During his first 100 days in office, he rightly focused on restoring public trust in both government and science and placed confronting the global rising tide of authoritarianism at the center of his foreign policy.

So it is perplexing that his administration continues to exploit a policy, Title 42, making a mockery of science, misusing public health arguments, violating human rights and contravening US law and bedrock international agreements under the guise of Covid-19 precautions. 

Recently, in a rare public statement directed at the United States, the United Nations High Commissioner for Refugees has called on the US government to “swiftly lift the public health-related asylum restrictions that remain in effect at the border and to restore access to asylum for the people whose lives depend on it, in line with international legal and human rights obligations.” 

Title 42 is a section of the Public Health Service Act of 1944 that allows the US Centers for Disease Control and Prevention (CDC) to implement public health measures at borders to prevent the introduction of a communicable disease. The CDC order, issued on March 17, 2020, blocks only certain migrants at the US borders with Mexico and Canada while allowing others to enter.

This is a Trump-era gambit at its worst that aligns with larger schemes designed by former President Trump’s senior policy adviser Stephen Miller to use public health as an excuse to close the border. The pandemic provided a perfect pretext for shutting down the US asylum system at the border and expelling nearly all refugees to face danger in Mexico or the countries they fled.

Title 42 authorizes the federal government to prohibit the introduction of people and property to protect Americans from contagious diseases, but it does not authorize the expulsion of people once they have entered the United States. Using Sections 362 and 365 of Title 42, the Trump administration not only disregarded the Refugee Act of 1980 and Refugee Convention by expelling back to danger people who have already entered the country, but weaponizes a health directive as immigration policy. Put simply, the CDC is a health agency, not an immigration agency. It has no authority to expel anyone, yet the Border Patrol is considering Title 42 authorization to expel people. This is not legal.

Some school children, truck drivers and even many tourists continue to cross the border freely as they did before the pandemic. In the first six months of Title 42, more than 40 million passengers and pedestrians entered the US through the southern border, the Los Angeles Times reported. While the number of apprehensions at the border surpassed 170,000 in April 2021, the actual number of people trying to cross the border, including those seeking asylum, is likely much smaller. In March, for instance, 28% of people expelled under Title 42 had previously been expelled, indicating multiple crossings, according to US Customs and Border Protection. 

The administration cannot expect the American people to trust them if it follows the science on issues of masks, vaccines and social distancing, and then uses nonsense public health justifications to turn away potential asylum seekers at the border. Indeed, leading epidemiologists and public health experts have repeatedly called on the CDC to revoke its order and “restore its position as a trusted source of objective, reliable, scientific information for the American public.”

Fortunately, the United States does not need to recommit to this illegal and cruel policy. If at this point in his presidency, Biden doesn’t have a plan to restore access to asylum and manage public health at the border, it’s time for things to change.

The administration should quickly finalize the reviews called for in a February 2 executive order to ensure that our asylum policies are always consistent with US law and treaty commitments.

Building on that, the administration should unequivocally revoke all the rules, regulations and policies the Trump administration used to rig asylum adjudications, exacerbate case backlogs and separate families, according to an analysis from Human Rights First.

They should follow the recommendations of public health experts to safeguard public health and follow US laws to protect asylum seekers. These include enforcing social distancing, using masks and allowing asylum seekers to shelter at homes of family members while their asylum claims are being adjudicated rather than be locked in dangerously unhealthy congregate detention facilities.

As Covid-19 spreads through close contact, the administration needs to modify border processing to minimize delays and avoid dense groups of people. They must ramp up the capacity to test anyone who has symptoms, has been exposed to the virus, has been in a congregate setting, or as otherwise required by the CDC or other medical guidance.

In fact, we know that detention of asylum seekers isn’t necessary. Research from the American Immigration Council indicates most immigrants who are released show up for their hearings without being detained. Adults and families should be allowed to shelter in place in their new American communities while unaccompanied minors should enter Health and Human Services custody until being released to their US-based sponsors. The administration has indicated it is serious about taking on the prison-industrial complex, and immigration detention is a good place to start.

To the Biden administration’s credit, serious headway was made against the pandemic in the first 100 days, as more than 220 million vaccine doses were provided. This was achieved because the President believes in science and listens to public health experts.

But the use of Title 42 to turn away migrants is based on junk science and its invocation last year was rooted in xenophobia. Biden must repeal this order now to uphold his claims that his administration’s decisions will always be based on science and respect for law and human rights.

* Michael Breen is the president and CEO of Human Rights First in New York and Washington, DC. Michele Heisler, MD, MPA is medical director of Physicians for Human Rights.