Biden Admin Doubles Down on Use of Title 42


Homeland Security Secretary Alejandro Mayorkas has doubled down on the Biden administration’s use of Title 42, dismissing recent criticism from a former senior State Department official who called it “illegal” and “inhumane,” instead insisting to Yahoo News on Tuesday that while it “is not an immigration policy that we in this administration would embrace,” the policy is a “public health imperative.”

Title 42, which was first used by former President Donald Trump and then continued by the Biden administration to expel hundreds of thousands of migrants who have crossed into the United States from Mexico, is an obscure public health authority that permits the government to prevent noncitizens from entering the U.S. during a pandemic.

When the Trump administration first invoked Title 42 early in the coronavirus pandemic last year, the Centers for Disease Control and Prevention issued an emergency order that permitted immigration officials to quickly expel mostly Mexican and Central American migrants without giving them an opportunity to apply for asylum or other protections in the U.S.

Even though public health experts and human rights activists have insisted that the policy be revoked, the Biden administration has instead defended it in federal court.

There have been 938,045 migrants expelled from the U.S. under Title 42 between October 2020 and August 2021, including more than 7,000 Haitians who tried in late September to cross the border in Del Rio, Texas, according to the U.S. Customs and Border Protection.

An outgoing senior adviser on the State Department’s legal team, Harold Koh, recently wrote a scathing internal memo insisting that the Biden administration’s use of Title 42 to expel migrants violates U.S. and international laws against returning people to countries where they fear persecution, death, or torture. He wrote that expulsions to Haiti, which is experiencing widespread violence and food insecurity, are “inhumane” and “not worthy of this Administration that I so strongly support,” Politico reported last week.

Koh’s criticism was in addition to protests by Daniel Foote, the administration’s special envoy to Haiti who resigned due to the mass expulsions last month.

When asked to respond to the Koh memo, Mayorkas said it is “heartbreaking” that a “material percentage” of Haitian migrants who recently arrived at the border will be expelled under Title 42, but that such action is “necessary as a matter of public health imperative.”