Biden’s Title 42 COVID order at the border is the right call

Last March, the Centers for Disease Control and Prevention (CDC) determined that admitting undocumented aliens from Canada and Mexico created a serious danger of bringing COVID-19 into the United States, regardless of their country of origin. Accordingly, it issued an order temporarily prohibiting the admission of such aliens pursuant to its authority under the Public Health Service Act.

Known as the “Title 42 order,” it permitted the rapid expulsion of aliens who would otherwise be held in crowded areas while being processed at a Port of Entry or a Border Patrol station, which typically would be undocumented immigrants. These areas were not designed to isolate or permit social distancing of persons who may be infected with a highly transmissible disease.

Should the order be withdrawn because some say it “endangers the lives of the families and adults” it is keeping out of the United States?

Democratic lawmakers, immigrant advocates, and public health experts claim that the policy is unlawful, inhumane, and has not been justified by public health considerations.

In a letter dated June 30, more than 100 organizations urged Biden to rescind it. They claimed that it —

• Violates U.S. refugee law and treaties;
• Endangers the people who are expelled at the border;
• Has been widely discredited by epidemiologists and public health experts;
• Has been the subject of a whistleblower disclosure from DHS medical experts condemning the policy for lacking a public health justification; and
• May subject Black and LGBTQ asylum seekers who are unable to request protection at a port of entry to targeted discrimination and violence.

The epidemiologists and public health experts claim that it isn’t necessary to hold undocumented aliens in congregate settings for processing. CBP has the legal authority to parole aliens apprehended at the border into the country. And a 2019 study found that of several hundred asylum seekers being held at the border under the Migrant Protection Protocols, 92 percent had family or friends they could stay with in the United States.

CBP does have parole authority, but it may not be applicable to this situation.

Section 1182(d)(5)(A) of the Immigration and Nationality Act provides that the DHS Secretary may “in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States.”

The Border Patrol is encountering so many illegal crossers that it isn’t possible to make the required determination on a case-by-case basis. It encountered 1,078,226 of them so far this fiscal year (through the end of June).

In any case, the aliens would have to be detained while the Border Patrol determines whether they have family or friends willing to provide a place for them to live while they wait for their immigration claims to be processed, which almost certainly would put them in crowded detention facilities for a substantial period of time.

The epidemiologists and public health experts also recommend using face masks, social distancing, hand hygiene, distancing demarcations, and barriers; avoiding congregate and high-density situations; and maximizing ventilation at processing locations.

It may be possible to do this, but the initial order was issued because such facilities were not available, and according to a recent CDC evaluation, they still are not available. On Aug. 2, 2021, CDC announced that it had extended the order because there still is a risk of transmission and spread of COVID-19 in congregate settings at Border Patrol stations.

The announcement explains that the order “shall remain in effect until the CDC Director determines that the danger of further introduction of COVID-19 into the United States from covered noncitizens has ceased to be a serious danger to the public health, and the order is no longer necessary to protect the public health.”

Threat of severe illness and death

As of Aug. 9, the pandemic had killed 617,307 people in the United States. This is more than the number of people killed in all of the wars we have had in the last 80 years — including 407,316 American soldiers killed in World War II, 54,246 in the Korean war, 58,220 in Viet Nam, and 6,840 in Operation Iraqi Freedom and Operation Enduring Freedom.

And the pandemic isn’t over.

According to CDC, the dangerous, highly transmissible Delta variant is causing a surge in COVID-19 cases, and more variants will arise in the future.

As of Aug. 9, only 50.2 percent of the more than 332 million people in the United States were fully vaccinated; adding those who’ve had one dose brings the total to 58.8 percent. This means that more than 138 million people have not had even one dose.

CDC predicts that if more people don’t get vaccinated and wear face masks, we could soon be seeing “several hundred thousand cases a day.” Masks are needed because although being vaccinated provides excellent protection against severe illness or death, it does not prevent a person from contracting the virus and transmitting it to other people.

Biden can’t rescind the Title 42 order under these circumstances.

According to White House Press Secretary Jen Psaki, President Biden views Title 42 as a public health measure. “The CDC is going to continue to provide guidance on how long it needs to be in place,” Psaki said. “We have not given a timeline of when… They will lift Title 42, but we will look for them to provide us that guidance.”

I have been a vocal critic of Biden’s immigration policies, but I agree with him on this one.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at https://nolanrappaport.blogspot.com.