As Title 42 ends, migrant detention facilities desperately need reforms 

The Statue of Liberty has stood in New York Harbor since 1886, welcoming immigrants and promising opportunities for huddled, poor and homeless masses. Yet, today, New York City is no longer a primary entry point for immigrants, and the United States now detains more immigrants than any other country in the world. Saudi Arabia is a distant second place.

Immigration into the U.S. has been severely limited over the past three years due to Title 42, which allows border authorities to turn away migrants for public health reasons. Since the start of the COVID-19 pandemic, Title 42 has abused public health to justify the U.S. Customs and Border Patrol (CBP) expelling migrants at the border. Lady Liberty would, instead, allow them to enter the U.S. and seek asylum in a safe and orderly manner.

It is anticipated that there will be a significant increase in asylum applications and border crossings after the end of the pandemic Title 42 policy, which expired today. This influx will require the Biden administration to consider how the U.S. processes migrants and how it can ensure the health and dignity of those it detains. The current system for detention relies on a network of nationwide facilities that are governed by inadequate, fragmented and poorly enforced public health standards.  

The number of immigrants entering the U.S. has declined sharply as a result of the CBP’s approach. In 2019, prior to the implementation of the Title 42 restrictions on entry, there were over 307,000 total asylum filings, of which 46,000 individuals were granted asylum. Asylum filings have since decreased, with 93,518 applications in 2020 and 62,795 in 2021.

Human rights and public health advocates have argued that the expiration of this application of Title 42, along with a larger review of the nation’s decades-old system for asylum and immigration, is long overdue.

Earlier this spring, the Biden administration stated that it is considering reviving policies that encourage the detention of migrant families who cross the U.S. border — without the pandemic as justification. While no official change has been announced, there are signals that the administration may adopt more stringent policies for the detention of migrant families and children.

We analyzed the conditions in U.S. detention facilities and found them to be substandard. Interviews with professionals who visited detention facilities between 2018-2020 indicate that even the most basic of health standards — such as access to a toilet, clean drinking water or medications for the management of chronic illnesses like diabetes or HIV — were consistently violated.

These interviews were reinforced by examples from U.S. Office of the Inspector General (OIG) reports and other documents that recounted freezing holding cells, gross delays in emergency medical care, sporadic access to meals and the use of inhumane punitive measures, such as solitary confinement for individuals experiencing mental health crises. Reports by OIG consistently reveal egregious violations — such as moldy food, overly restrictive segregation and untimely emergency medical care, among other things.

In more recent research, we determined that the persistence of low compliance with health standards in detention facilities stems from weak accountability mechanisms, minimal transparency and inadequate staffing to provide essential health services.

National monitoring of compliance with health standards is notoriously insufficient across the three federal agencies that run detention facilities — CBP, Immigration and Customs Enforcement (ICE), and the Office of Refugee Resettlement — especially because access to detention facilities is limited.

There are also systemic issues inherent to the U.S. detention system that hinder the provision of basic care to migrants. First, the U.S. detention agencies are increasingly fragmented, both by population type — adults are managed by the Department of Homeland Security (DHS) and children by the Department of Health and Human Services (HHS) — and by the types of health services required. Because each agency is bound to its own set of standards, there is tremendous room for inconsistencies and inequities in care and treatment across the migration detention system.

Secondly, conditions of confinement in U.S. detention facilities, particularly when individuals are detained for extended periods of time, have been quite harmful to physical and mental health. Migrants should be ensured of their public health rights and services in all spaces they occupy for any length of time, regardless of who manages the facility.

The adverse effects of detention could be avoided if alternatives to detention were implemented, such as community-based supervised release, release with or without conditions or other less restrictive and detrimental measures. Until this possibility is achieved, the U.S. health standards for detention facilities must be updated to comply with international humanitarian standards and reflective of modern public health guidance, particularly for infection control, immunizations, management of chronic illness, protections for vulnerable populations and mental health care.

This will require the expansion of independent monitoring and evaluation mechanisms, the standardization of health regulations across federal agencies, the development of a systematic evaluation tool to help external visitors — including members of Congress — assess the degree of implementation of standards, the enforcement of consequences for private contractors who violate health standards and restriction of the use of waivers that allow detention facilities to circumvent compliance with health standards.

Ultimately, the Biden administration must proactively explore and implement alternatives to detention to maintain the health and dignity of the individuals under its care. The expiration of the Title 42 policy presents the perfect opportunity to do so.

If the administration is truly committed to fulfilling its campaign promise of “returning humanity to the immigration system” it must recognize that the future of the system does not include the detention of families, especially in such squalid conditions.

Lauren Tejkl, MSPH; David Tellez, MSPH; and Dana McLaughlin, MPH are former research assistants at the Johns Hopkins Bloomberg School of Public Health’s Center for Humanitarian Health. Paul Spiegel, MD, MPH, is a professor of the practice at the Johns Hopkins Bloomberg School of Public Health and director of the Johns Hopkins Center for Humanitarian Health.

Editor’s note: This piece was updated on May 11 at 10 a.m. to correct an author’s affiliation.