It’s time for Biden to eliminate one of Trump’s worst immigration policies

It’s the oldest of Washington games: anonymous administration sources passing the buck for a failed policy and refusing to take meaningful steps to end it.

This time the policy in question is Title 42, which allows the federal government to summarily send asylum-seekers back to the places they fled during a public health crisis. Immigration advocates are furious that President Biden is using a Trump-era policy to justify the recent mass expulsion of Haitian asylum-seekers from the southern border — back to a country ravaged by a recent earthquake, Hurricane Ida and presidential assassination. 

Instead of ending Title 42, different factions within the Biden administration are blaming each other for retaining it. The White House and State Department blame the Centers for Disease Control. The CDC says they’re simply following the science. Amid the infighting, Harold Koh, one of the State Department’s top lawyers, left his post this week and blasted Title 42 on his way out the door as “illegal,” “inhumane” and “not worthy of this Administration that I so strongly support.”

Koh is, if anything, being diplomatic in his wording. Title 42 runs completely contrary to U.S. asylum laws and international obligations. It’s legally and morally indefensible, and it needs to be immediately and completely reversed. 

Let’s be clear: Most scientific and medical experts in government actually opposed Title 42 from the start, arguing that it does more harm than good. Now, the Biden administration’s stated defense of the policy has been publicly contradicted by one of his most senior public health officials, Dr. Anthony Fauci, the country’s leading infectious disease expert and chief medical adviser to Biden.  

When asked specifically about Title 42 during a recent interview, Fauci said that “expelling [asylum-seekers] is not the solution” to the current public health crisis. Human rights advocates strongly agree, but were also quick to point out that this statement contradicts the policy of the administration Fauci serves. 

Likewise, the administration’s argument that Title 42 is a legally justified CDC order has been systematically dismantled by Koh, an internationally known expert with particular credibility on the subject of Haitian refugees. In 1993, as a Yale law professor, Koh led a legal challenge to the U.S. government’s practice of intercepting Haitian refugees at sea and turning them back to the shores they fled. His work on this case — which made it to the Supreme Court — has been an inspiration to generations of students looking to take up the practice of asylum law. 

To his credit, Koh is not staying silent now that the administration he served is once again violating Haitians’ internationally protected asylum rights. The legal memo Koh penned, first obtained by Politico, lays out in stark terms why Title 42 violates international laws the United States swore to uphold. Specifically, Koh notes that the U.S. is a signatory to the UN Convention Against Torture, as well as the earlier Refugee Convention, which the United States joined indirectly through a 1967 protocol. These agreements, Koh notes, forbid the U.S. government from expelling or returning people “in any manner whatsoever” to places where they face a well-founded fear of persecution. 

Biden certainly can’t pretend he is unaware of these obligations — he is one of the people who helped make them law. When he was in the Senate, Biden was among the original cosponsors of the 1980 Refugee Act that incorporated the substance of these international agreements into U.S. domestic law. The parts of the U.S. code that relate to refugee rights — including prohibitions on summary expulsion or return of asylum-seekers without assessing their fear of persecution — are still on the books today, even if they are now being systematically disregarded under cover of the Title 42 order. 

Biden can and must do better — and key members of his own team are now saying so themselves. It’s time, therefore, to call the administration’s bluff. If they mean what they say about Title 42 having nothing to do with immigration and being solely under the CDC’s purview, then the public health agency should listen to the experts and terminate the order. If the policy is in fact just an immigration deterrence strategy in disguise — as we suspect — then it is time to drop the pretense. Title 42 simply does not serve public health. No one is made safer or healthier by a policy that expels families and individuals to conditions that put their lives at risk. It needs to end.

Joshua Leach is a public policy and communications strategist at the Unitarian Universalist Service Committee, a nonprofit advancing human rights with an international community of grassroots partners and advocates. Follow him on Twitter: @JoshuaFLeach