This letter was sent to both the U.S. House of Representatives and the Senate on April 26, 2022.
On behalf of The Leadership Conference on Civil and Human Rights, a coalition of more than 230 national organizations committed to promoting and protecting civil and human rights, and the undersigned 205 civil and human rights organizations, we write to encourage your support of the Biden administration’s plans to end Title 42 on May 23, 2022.1 We urge you to reject any and all legislative efforts to extend Title 42 beyond May 23, 2022, including the Public Health and Border Security Act of 2022 (S.4036) and potential amendments to the COVID-19 relief bill. Ending Title 42 is an urgent racial justice, human rights, and civil rights issue, and we encourage you to work in tandem with the Biden administration to change course now.
Keeping Title 42 in place affects not only immigrant communities, but the country at large.
For more than two years, Title 42 has rendered our Southern border and ports of entry virtually closed to asylum seekers and refugees. The prolonged use of Title 42 has betrayed our country’s commitment to the international human rights principle of non-refoulement,2 to our domestic laws governing the right to seek asylum, and to our professed role as a beacon and leader in advancing civil and human rights worldwide. Title 42 represents both a purposeful abandonment of our shared legal and moral principles and a myopic unwillingness to right the wrongs of the last administration. Immigrants continue to make up 1 in 5 essential workers, 1 in 5 health care workers, and 1 in 4 long-term care workers, serving in all of the industries deemed “essential” during the ongoing COVID-19 pandemic.3 Title 42’s prolonged use over the past two years is an odious stain on the Biden administration’s still-unfolding legacy. Should Title 42 continue indefinitely, it will spell the virtual end of U.S. asylum and should serve as a dire harbinger of continued civil and human rights rollbacks to come. Such purposeful regression, if met with little to no resistance, will harm not only immigrant communities but all those concerned with the fate of our country.
Use of Title 42 to prevent people fleeing persecution from applying for asylum is a perverse misuse of a public health law.
It is not surprising that Title 42 has failed to protect public health or stem the tide of COVID-19 in the U.S., and has not reduced the surges emerging variants have caused. There is no evidence that Title 42 will protect the country from future variants and surges. Epidemiologists,4 former CDC officials,5 and public health experts6 have denounced the junk science7 underlying the use of Title 42 since its authorization in 2020. The CDC itself now formally agrees that Title 42 does not provide a public health benefit. Furthermore, Title 42 has reinforced ugly, racialized stereotypes about immigrants and the propensity for disease. Recent characterizations of Title 42 as a border management tool belie any reasoning based on science or public health and confirm that it has been used as an immigration policy, not a public health policy. Indeed, the March 11, 2022 memo8 to Customs and Border Protection officers authorizing an exemption from expulsion under Title 42 solely for Ukrainian nationals demonstrates the flimsiness of any purported public health justification. Such exemptions, narrowly applied, appear inequitable on their face and seem to support allegations that U.S. compassion for asylum seekers and refugees is heavily influenced by race, ethnicity, and nationality. In the end, misuse of a public health law in this way to circumvent due process at the border further undermines the credibility of public health institutions that are already under attack by movements with an anti-science agenda.
Efforts to tie the use of Title 42 to the COVID-related Public Health Emergency will harm both immigrants and the most vulnerable U.S. citizens.
The key to ending the pandemic is increasing access to vaccines and preventative measures, not continuing anti-immigrant policies like Title 42. Some in Congress are seeking to reduce or block entirely funding to fight COVID-19, while others proposed tying the continuation of Title 42 to the Surgeon General’s authority to declare or end a Public Health Emergency (PHE). Proposals that would prevent the administration from ending the use of Title 42 unless the PHE is also ended are misguided and dangerous, and put undue pressure on officials to lift the PHE prematurely to restore access to asylum. Ending the recently-renewed PHE is expected to result in over 12 million Medicaid beneficiaries losing coverage, along with countless consequences for COVID-19 related programs that serve all Americans. PHEs have a particular purpose: to create flexibility and certainty so the health care system can meet our country’s health needs. Especially given that doctors, hospitals, community health centers, and other providers face a sudden lapse of resources to fight the pandemic, it is not time to further tie the hands of the Department of Health and Human Services.
Title 42 has exposed asylum seekers to chaos and violence, and has exposed Black asylum seekers to disproportionate, anti-Black harms.
Title 42 has not deterred asylum seekers and refugees from traveling to the Southern border — it has, instead, increased9 the number of desperate people fleeing danger who quickly attempt re-entry, because access to safety has been blocked and asylum claims are not being heard. Neither Title 42, nor any other dubious policy of its kind, can deter people who seek protection from persecution. Title 42 has exposed asylum seekers to violence after expulsion — with almost 10,000 reports10 of kidnapping, rape, assault, torture, and more. Furthermore, Title 42 has had an outsized negative impact on hyper-visible Black asylum seekers from Africa and the Caribbean11 in particular, including (but not limited to) mass deportations and gruesome violence against Haitian migrants by Customs and Border Protection officials. The Leadership Conference and allied organizations decried12 this anti-Black violence against Haitian and other Black asylum seekers in Del Rio, Texas last September, and we do so again today. To emphasize the scale of the harm Title 42 has wrought, consider this statistic: the U.S. government has conducted nearly 2 million expulsions in the past two years.13 With every day that Title 42 remains in place, an ever-growing number of asylum seekers are experiencing heinous harms that alter their lives forever. Seeking to extend this policy sanctions such harms both theoretically and in reality.
Ending Title 42 will not automatically lead to chaos at the border. Indeed, the removal of Title 42 is a return to regular order: Asylum claims will once again be processed and heard as authorized by U.S. law. The Biden administration has announced a comprehensive, whole-of-government plan14 to address potential increases in asylum seekers and refugees at the border, including surging personnel to the area, providing COVID-19 vaccines to those in custody, and reducing crowding in holding facilities. The expected short-term increase in arrivals is smaller than other increases in migration in our country’s history, and far smaller than the numbers of migrants that other nations have been able to welcome and process. Chaotic conditions at the border are not a result of “surges”, but rather of misguided approaches to enforcement. The transition to an orderly system at the border depends on the adoption of more humane and welcoming policies, and will only be made more difficult if Congress or the Biden administration adopts a punitive, enforcement-only approach. In the post-Title 42 world, the U.S. must welcome asylum seekers with dignity. We urge Members of Congress, instead of pursuing avenues to extend Title 42, to work with the Biden administration to enhance and improve these plans in meaningful ways, and to encourage the Biden administration to reject an enforcement-only approach to managing the Southern border, which would have disastrous, disorderly results.
The misuse of Title 42 is one of the most urgent civil and human rights issues of our day, and we urge you to stand with immigrants and welcome all with dignity. All Members of Congress should reject legislative efforts to extend Title 42 or continue tying this wholesale policy failure to the essential public health funding needed to end the pandemic. Congress must take a step in the right direction to establish a humane asylum system.
If you have any questions or concerns, please contact Breanne Palmer, Immigration Policy Counsel, at firstname.lastname@example.org.
1 Centers for Disease Control and Prevention, Public Health Determination and Termination of Title 42 Order
2 United Nations Office of the High Commissioner for Refugees, The principle of non-refoulement under international human rights law, https://www.ohchr.org/sites/default/files/Documents/Issues/Migration/GlobalCompactMigration/ThePrincipleNon- RefoulementUnderInternationalHumanRightsLaw.pdf.
3 Migration Policy Institute, Immigrant Workers: Vital to the U.S. COVID-19 Response, Disproportionately Vulnerable (April 2020) https://www.migrationpolicy.org/sites/default/files/publications/COVID-19- EssentialWorkers-FS_Final.pdf; U.S. Department of Homeland Security, Advisory Memorandum on Ensuring Essential Critical Infrastructure Workers’ Ability to Work During the COVID-19 Response (August 10, 2021) https://www.cisa.gov/sites/default/files/publications/essential_critical_infrastructure_workforce- guidance_v4.1_508.pdf.
4 Columbia University Program on Forced Migration and Health, Epidemiologists and Public Health Experts Reiterate Urgent Call to End Title 42 (January 14, 2022), https://www.publichealth.columbia.edu/research/program- forced-migration-and-health/epidemiologists-and-public-health-experts-reiterate-urgent-call-end-title-42.
5 CBS News, Top CDC official told Congress migrant expulsion policy was not needed to contain COVID
6 Physicians for Human Rights, Neither Safety nor Health: How Title 42 Expulsions Harm Health and Violate Rights (July 28, 2021), https://phr.org/our-work/resources/neither-safety-nor-health/.
7 Physicians for Human Rights, 1,300+ Medical Professionals from 49 U.S. States and Territories Call on CDC to
8 U.S. Customs and Border Protection, Title 42 Exceptions for Ukrainian Nationals (March 11, 2022), https://drive.google.com/file/d/1glEe8MnsNWR15BsfQtiaSR75yKBrCuqe/view.
9 American Immigration Council, Rising Border Encounters in 2021: An Overview and Analysis (March 4, 2022), https://www.americanimmigrationcouncil.org/rising-border-encounters-in-2021.
10 Human Rights First, Two Years of Suffering: Biden Administration Continues Use of Discredited Title 42 Order
to Flout Refugee Law (March 17, 2022), https://www.humanrightsfirst.org/resource/two-years-suffering-biden- administration-continues-use-discredited-title-42-order-flout.
11 Robert F. Kennedy Human Rights and Haitian Bridge Alliance, Beyond the Bridge: Documented HUman Rights
Abuses and Civil Rights Violations Against Haitian Migrants in the Del Rio, Texas Encampment (2022), https://rfkhr.imgix.net/asset/Del-Rio-Report.pdf. The Quixote Center and Haitian Bridge Alliance, The Invisible Wall: Title 42 and its Impact on Haitian Migrants (2021) https://www.quixote.org/wp- content/uploads/2021/03/The-Invisible-Wall.pdf.
12 The Leadership Conference on Civil and Human Rights, Biden Must Pause Deportation of Haitians, Respect Due Process (September 24, 2021), https://civilrights.org/2021/09/24/biden-must-pause-deportation-of-haitians-respect- due-process/.
13 U.S. Customs and Border Protection, Nationwide Enforcement Encounters: Title 8 Enforcement Actions and Title 42 Expulsions 2022 (last modified April 8, 2022) https://www.cbp.gov/newsroom/stats/cbp-enforcement- statistics/title-8-and-title-42-statistics.
14 U.S. Department of Homeland Security, FACT SHEET: DHS Preparations for a Potential Increase in Migration