Title 42 is one of many anti-immigration policies implemented during the Trump administration. Since the beginning of Donald Trump’s 2016 campaign for the Republican presidential nomination, he vowed to remove all avenues for immigrants seeking protection under the laws of the United States.7 Immigrants have the right to seek protection under both international law and United States statute.8 Within days of his inauguration former President Trump began issuing executive orders to withhold funds from sanctuary cities and ordered the blockage of immigrants and refugees from predominantly Muslim countries.9 Throughout the Trump administration, new policies were implemented or introduced for comment that chipped away at the pre-existing broken asylum and immigration framework.10 Title 42 was among a multitude of anti-immigrant policies including Executive Order 13769, known as “the Muslim Ban,” and the Department of Homeland Security’s (DHS) Migrant Protection Protocols, known as the “Remain in Mexico” policy.11 According to Linda Rivas, the Executive Director and Managing Attorney of Las Americas Immigrant Advocacy Center in El Paso, Texas, prior to the implementation of these policies, the processing of arriving undocumented persons by land border was somewhat standardized, though varied in part depending on where the apprehension and processing occurred.12
This paper continues in four sections. Section I summarizes the relevant history of Title 42. Section II discusses the Trump Administration’s implementation of the Title 42 expulsion process and its impact on immigrants seeking protection in the United States through land POEs at or near the United States borders with Canada and Mexico. Section II also summarizes the Trump Administration’s and CDC’s reasoning regarding why Title 42 should supersede codified asylum law, the Convention Against Torture (CAT), and Withholding of Removal. Section III outlines the illegality of Title 42 due to its bad faith implementation and violation of sections of the Immigration and Nationality Act (INA), the Convention Against Torture (CAT), and the United States Constitution. Finally, Section IV concludes this note with a discussion of Title 42 expulsions under the Biden Administration, the future of Title 42, and recommendations to policymakers.
Whenever the Surgeon General determines . . . by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States, . . . the Surgeon General, in accordance with regulations approved by the President, shall have the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate in order to avert such danger, and for such period of time as he may deem necessary for such purpose.15
Section 365 of the PHSA, which is qualified by section 362, states:
(a) Any consular or medical officer of the United States, designated for such purpose by the Secretary, shall make reports to the Surgeon General, on such forms and at such intervals as the Surgeon General may prescribe, of the health conditions at the port or place at which such officer is stationed. (b) It shall be the duty of the customs officers and of Coast Guard officers to aid in the enforcement of quarantine rules and regulations.16
Sections 362 and 365 were established on July 3, 1944, under the PHSA by President Franklin D. Roosevelt.17 These provisions mostly consolidate a previous order which dates back to 1893, but also shifted authority from the President to the Surgeon General to “prohibit introduction.”18 In 1970, implementation authority shifted again, from the Surgeon General to the Secretary of Health and Human Services, who later delegated this authority to the CDC.19
Federal quarantine power has evolved around an “intermittent series of deadly epidemics” from the colonial era through the passage of the PHSA, and afterwards through the PHSA’s continued modifications.20 This evolving power to protect against external threats of communicable disease gradually transferred from state and local authorities to the federal government.21 Records indicate that the federal government first became involved in quarantine measures in the 1790s, when it granted consent to the state of Maryland to impose a duty on vessels entering Baltimore's district from international ports in order to pay for the costs of a health officer at the Port of Baltimore.22 Then, in 1891, Congress passed a law that provided for the exclusion of all “persons suffering from a loathsome or dangerous contagious disease,” in order to prevent the ingress of immigrants potentially carrying yellow fever, cholera, and the plague.23 Years later, the court affirmed the federal government’s power over quarantine law.24 In 1893, the court in Minneapolis v. Milner held that a state has the right to detain and inspect immigrants, even those from uninfected countries as “[t]he inconvenience resulting to emigrants and travelers from being halted and subjected to examination and detention at state lines is of trifling importance at a time when every effort is required and is being put forth to prevent the introduction and spread of pestilential and communicable diseases.”25 While states have the right to implement their own public health legislation, if that legislation conflicts with a Congressional provision that is passed in compliance with the Constitution, the federal law will have “unobstructed operation.”26
Courts have previously deferred to agencies’ discretion to assert authority over quarantine policy, such as Title 42. In Louisiana v. Mathews, the Food and Drug Administration (FDA) was challenged for an absolute ban it implemented pursuant to the PHSA on the sale and distribution of small turtles due to the turtles’ potential spread of communicable disease.27 The plaintiffs claimed that, because the FDA banned the interstate shipment of both infected and uninfected turtles, the FDA had exceeded its authority under the PHSA’s scope as they were only “authorized to prohibit . . . the interstate shipment of turtles which may spread communicable disease.”28 But, the court upheld the FDA’s ban because the plaintiffs failed to prove that the FDA’s ban would not improve the spread of communicable disease.29 In coming to this conclusion, the court also noted that federal health authorities are granted “broad, flexible powers” when implementing the PHSA.30
While the CDC has the power to implement the PHSA, legal scholars argue that the agency’s present interpretation of the PHSA is unprecedented and is being applied as “a summary immigration expulsion process.”31 Theresa Cardinal Brown, the Managing Director of Immigration and Cross Border Policy at the Bipartisan Policy Center, stated:
In general, it’s been used in the past . . . to prevent entry, or to quarantine people after they arrive, but as far as I know, this is the first time it’s been used very broadly to apply strictly to people entering between the Ports of Entry in the U.S.-Mexico land border.32
Research on similar implementation of the PHSA sections 362 and 365 has not been located, and there is no widely known previous instance of implementation equivalent to the broad expulsion of all asylum seekers trying to enter by land border due to an international communicable disease, nor has case law referring to its legality been found.33
While DHS has not stated which countries of origin are meant to be included in the Remain in Mexico policy versus Title 42, the enforcement of the latter primarily impacted those from Mexico, Guatemala, Honduras, and El Salvador.40 Such disparate implementation of these policies is a result of the agreement between the United States and Mexico to allow immigrants from Mexico and the three Central American countries to be pushed back into Mexico, rather than their home countries under Title 42.41 The aforementioned countries were also likely targeted because they account for about eighty-five percent of all unauthorized border crossings.42 While other immigrant nationalities, such as Haitians, are subject to Title 42, they are more likely to be flown to their home country rather than deported to Mexico, regardless of their preference.43 While the government’s official purpose for the varied treatment is unknown, immigration data and United States policy indicates that Black immigrants, such as Haitians, are regularly subjected to greater structural barriers to entering the United States.44
Title 42 applies to persons traveling from Canada or Mexico who do not have proper travel documents and would otherwise make contact with a POE or Border Patrol station at or near the United States borders with Canada and Mexico.50 The government refers to all persons to whom Title 42 applies as “covered aliens,” but out of respect of the humanity of those covered under Title 42, this article will refer to them hereafter as “covered undocumented persons.”51 The order does not apply to United States citizens, lawful permanent residents, and their spouses and children, members of the United States military and associated persons, and individuals in the visa waiver program who are not subject to other travel restrictions and arrive at a POE.52 The order also claims that under the totality of the circumstances, DHS officers can exempt certain persons from expulsion, based on considerations including public safety, health interests, and humanitarian concerns.53 However, evidence demonstrates a lack of such exemptions for impacted vulnerable populations. This includes, for example, the large-scale expulsion of young children as well as at least eleven women who gave birth in United States custody and were then expelled to Mexico border towns with their newborn children.54 One mother even reported being deported to Mexico within minutes of being discharged from the hospital where she gave birth just a few days earlier.55 A CBP spokesman, Mathew Dyman, also implied that humanitarian concerns are not a serious consideration. When discussing Title 42’s enforcement, Dyman “said the emergency order applies to everyone, ‘no matter their disability or age.’”56
In the order notice, the CDC alleged that Title 42’s application against covered undocumented persons, a particularly narrow population, is due to the lengthy processing procedures for covered undocumented persons and CBP’s lack of resources to safely process them.57 First, it refers to the prolonged processing time compared to United States citizens, lawful permanent residents, and other persons with travel documents.58 The CDC asserts that covered undocumented persons may spend hours to days in congregate areas compared to those with the documentation, who move quickly into the United States after contact with CBP and other travelers.59 The CDC believes that because of the lengthy processing time, there is greater risk of exposure to CBP personnel and fellow covered undocumented persons.60 As further justification, the CDC refers to CBP’s inability to perform proper infection control procedures for numerous immigrants.61 These procedures include consulting with local health professionals about whether the individual should be tested for COVID-19, disinfecting transportation vehicles, and coordinating with ICE to contain the spread of COVID-19 by quarantining exposed or infected individuals in small areas used to process covered undocumented persons.62 The CDC states that such infection control procedures would not be easy to scale for a large number of people, especially since only 46 out of 136 Border Patrol stations offer any medical services.63
CBP Officer and special operations supervisor, Rafael Garza, described the process for apprehensions in the borderland region of Laredo, Texas.67 Garza explained that the entirety of the process is conducted remotely in the field, and immigrants subjected to the process never have to step foot in their station, claiming: “[w]e apprehend them, we give them a face mask and I ask them if they’re feeling any symptoms, ‘No I’m fine, this and that,’ and then we process them remotely.”68 While less frequently reported, some families are detained in hotels by the private contractor company, MVM Inc. (MVM)—which the immigration authorities refer to as “transportation specialists”—and are then expelled to their country of origin.69
For example, Verty, an immigrant from Haiti, stated that MVM repeatedly told him and his family that they were going to be taking a flight to Florida to be reunited with their families, stating, “I understood it was a deportation when I saw people arriving in handcuffs.”70 The process which Verty and his family were subjected to was also applied against UNC.71
Prior to March 2020, and to the use of Title 42, Central American UNC crossing into the United States by land borders were generally sent to ORR facilities overseen by the Health and Human Services.79 These facilities are required to be licensed, with schooling and maintenance according to the Flores Settlement standard.80 In 2019, most UNC were eventually released from ORR care and placed with family or friends who served as sponsors while they awaited their day in court.81
Importantly, while the United States agreement with Mexico permits the return of Central American immigrants to Mexico under Title 42, it excludes the return of UNC, referred to as “single minors” by the Trump Administration.82 Despite this accord, however, the Chief of Border Patrol’s Rio Grande Valley sector acknowledged that non-Mexican minors were sent back alone into Mexico’s border cities where the kidnapping and human trafficking of Central American immigrants is a grave issue.83
The more common expulsion procedure of UNC under Title 42 was to detain them in hotels—sometimes for weeks—until their deportation when they would return them to their country of origin by plane.84 By holding the children in hotels, immigration authorities have made it basically impossible for lawyers or advocates to locate them before their return to the home countries from which they have fled.85 Immigration and Customs Enforcement (ICE) relied on MVM, whose employees received a mere two days of training to care for the minors, to carry out this work.86 CBP turned away and expelled nearly 13,000 UNC, and an “independent monitor appointed by a federal court to oversee the government’s compliance with the Flores Settlement agreement . . . revealed . . . that at least 577 UNC were detained . . . between March and July [2020].”87 Some children were “sent to overcrowded government shelters in Central American countries like Guatemala, others [were] totally out of reach of legal service providers, who have not been able to find them.”88 Reports indicate that children have had to borrow cellphones when they arrived at airports to look for their family members who may be willing to house them.89
Elida, a Guatemalan mother who had been waiting for five months in the violent border city of Ciudad Juarez for her United States asylum hearing, decided to send Gustavo, her 12-year-old son with a disability, to cross into the United States alone out of desperation and fear for his safety in Mexico after a stranger attempted to take him from her.90 Elida watched her son walk into the United States with the understanding that he would be temporarily detained and then released to his grandfather (who lived in the United States) because of his age.91 Gustavo’s grandfather was alerted that he was in the country, yet Gustavo effectively vanished for a week and his Mother was left in the dark about his whereabouts.92 It was not until a Guatemalan news blog posted on Facebook stating that authorities were seeking to locate Gustavo’s parents that she learned of his rapid deportation.93 When Gustavo returned to live with his father, he refused to speak with his mother by phone, allegedly bursting into tears when his father gave him the phone, as Gustavo believed that his mother had abandoned him and forced his return to Guatemala.94 For many advocates, these inhumane practices called into question the validity of the Trump Administration’s justification that Title 42 was necessary to protect public health.
According to Human Rights First, the assertions made by DHS that the CDC relied on as reasoning to enforce Title 42 contradict evidence released in unsealed documents in Al Otro Lado v. Wolf.98 Human Rights First’s accumulated evidence contradicts CBP’s assertions by recognizing DHS’s ability to expeditiously release the covered undocumented persons on parole while they await their immigration court proceedings within the United States.99 The report by Human Rights First demonstrates that individuals do not need to be held in congregate settings for hours to days at a time.100 The documentation shows that at the Brownsville, Texas POE, CBP was able to process asylum seekers within two and a half hours, and in Hidalgo, Texas within two to three hours.101 Other POE demonstrated similar data.102 Human Rights First also presented evidence that CBP has multiple holding areas, such as passport control lobbies, secondary inspection, and “overflow” processing spaces where individuals could likely safely social distance while waiting to be processed.103
As stated previously, the process for immigration processing of UNC is distinct from individuals over eighteen years old and family units.104 In recognition of UNC’s particular vulnerability, there is increased protection and regulation of UNC facilities.105 Despite this, however, UNC were not only expeditiously deported to their home countries, but also were deported to Mexico even when the United States government knew Mexico was not their home country.106 Deputy Director of the National Immigrant Rights Project at the ACLU, Lee Gelernt, stated that “[e]ven apart from the general illegality of Title 42, it is separately illegal under the immigration laws to expel a non-Mexican child to Mexico.”107 The acting CBP commissioner, Mark Morgan, stated that UNC cannot be housed at the standard ORR facilities while following social distancing measures because “[i]f we introduce these individuals to ORR, we’re defeating the entire purpose of Title 42, . . . [w]e’re still introducing these individuals into our system throughout and creating greater exposure risk to the American people.”108
Further, court documentation and information given by ICE to congressional staff indicates that by the time UNC board their deportation flight, they have “virtually all” already tested negative for COVID.109 All migrants that test positive for COVID-19, including UNC, are required to remain in the United States.110 However, in November 2020, ICE officials stated that four children who were expelled to their country of origin, Guatemala, tested positive for COVID-19.111 In May 2020, sixty-nine UNC in government custody tested positive for COVID-19 under the care of the Office of Refugee Resettlement, and the children were put into medical isolation.112
Government agents administer tests in accordance with agreements that the Trump Administration made with foreign countries which “require that children test negative for COVID-19 before being sent back.”113 ICE utilizes rapid testing, which can produce results within 15 minutes. The administration’s testing policy seems to undermine the rationale that Title 42 is implemented to “‘prevent the introduction’ of COVID-19 into the United States,” and among CBP employees.114
Lastly, an individual removed from the United States under Title 42 shared a statement regarding a procedure they witnessed by immigration officials that defies not only science, but also logic. As mentioned earlier, Verty, an immigrant from Haiti, was detained at a hotel with his family, including his one-year-old daughter.115 He claims government contractors gave him and his family cups of ice and told them to eat it incase their temperature is checked.116 It is likely that the immigration officers were pushing them to eat the ice in fear that if Verty or his family returned to Haiti with a temperature they would not be permitted into the country or could face other repercussions for causing an increased exposure risk to other Haitian nationals. Verty’s experience exposes the hollow reasoning of the CDC’s enforcement of Title 42 and the callous disregard the United States government is deploying against covered undocumented persons and their countries, by willingly deporting potentially sick asylum seekers to countries like Haiti that lack the healthcare and other infrastructure to adequately control the deadly pandemic. Importantly, the United States has played an integral role in the destabilization of Haiti’s economy and government, which has facilitated the country’s inability to meet such needs.117 On September 22, 2021, Daniel Foote, the United States Special Envoy to Haiti, resigned in protest due to the treatment and expulsions of Haitian immigrants.118 In Foote’s resignation letter, he urged the United States Secretary of State to prioritize Haitian citizens’ demands and halt the United States’ ongoing interference in Haiti’s election process stating, “[t]he hubris that makes us believe we should pick the winner – again – is impressive. This cycle of international political interventions in Haiti has consistently produced catastrophic results.”119
As mentioned above, the implementation of Title 42 has forced immigrants attempting to enter the United States to be expelled expeditiously, sometimes in as little as two hours.120 Many of those rapidly sent back to Mexico make multiple attempts to reenter the country.121 This is due to the implementation procedures of Title 42, which reduce the risk of detention or criminal prosecution for covered undocumented persons attempting to enter the United States without inspection. Immigration Attorney, Taylor Levy, compared this phenomenon to the 1990s-era immigration policies that were in place prior to section 1325—a federal law that criminalizes crossing into the United States outside of a POE—as Title 42 has caused more immigrants who enter without inspection to eventually reach the interior of the United States undetected by immigration officials.122 As of October 2020, data indicated that at least one-third of individuals taken into immigration custody were immigrants who were previously apprehended when attempting to enter the United States.123
Title 42 also created a major shift of the migration patterns at the border. In 2019, the majority of the migrant population consisted of families, many of whom were willing to turn themselves in to border agents.124 Due to Title 42, however, desperate migrants are now attempting to enter the United States undetected by hiring human smugglers, widely known as “Coyotes.”125 Levy stated that because there are more migrants seeking services to cross into the United States, Coyotes are selling what they call “unlimited attempts” (in Spanish, intentos sin limites) where they charge a rate for an unlimited number of attempts to enter the United States undetected until they are successful.126 Law enforcement agencies in southern Arizona have documented dangerous cases of migrants packed tightly into vehicles, primarily due to the rise in attempts to enter.127 Indeed, since the implementation of numerous enforcement policies put in place to curb the spread of COVID-19, including Title 42, CBP has observed a large uptick of human smuggling activity across the United States-Mexico border.128 The rise of human smuggling into the United States will mean more vulnerable immigrants will likely die or be harmed due to the dangerous methods the smugglers use to cross them while attempting to evade detection by immigration officials.129 Consequently, migrant deaths in 2021 will likely surpass those in fiscal year 2020. Border Patrol discovered 250 migrant bodies along the border in fiscal year 2020, and as of May of fiscal year 2021, 203 migrant bodies have already been found.130 Further, due to more migrants entering the United States without inspection, it is more likely that they could expose more of the population to the virus due to the lack of regulation and inability to enforce quarantine precautions.
Guatemala, which has been hit particularly hard by the coronavirus, suspended acceptance of deportation flights from the United States in March 2020 in an attempt to pressure the United States to implement stricter health measures to screen deportees.134 Shortly after its implementation, however, Guatemala terminated the suspension due to pressure by the United States.135 Between March and September 2020, at least 331 deportees tested positive for COVID-19 after arriving in Guatemala, however, it is likely that the actual number of positive cases of deportees is higher due to the Guatemalan government’s testing limitations.136 An analysis of data on United States deportations to Guatemala demonstrates that when there “were tens of thousands of cases in the U.S. but only a handful in Guatemala,” and that United States deportations of Guatemalan nationals fueled the spread of the coronavirus in Guatemala.137 According to Guatemalan Congresswoman Andrea Villagrán, sending deportees with COVID-19 to Guatemala—where many live in extreme poverty—has contributed to the spread of the virus, exacerbated by the country’s pandemic conditions, and is likely to cause more people to emigrate to another country, including the United States.138 Meanwhile, other countries fully cooperated with accepting deportees due to pressure by former President Trump and his promises of humanitarian aid in exchange for compliance with United States immigration deportations and policies.139
Immigrant justice advocates, attorneys, and public health experts claim that the implementation of Title 42 expulsions was an enforcement beyond the PHSA’s true statutory purpose. The purpose of the PHSA was to allow acts “in the interest of the public health.”140 However, the Trump Administration’s acts are better understood as a political initiative in preparation of the 2020 Presidential Election. Morgan Russell, a staff attorney with the ACLU Immigrants’ Rights Project, alleged that the Senior Advisor to former President Trump, Stephen Miller, had been looking into enforcing Title 42 even before the COVID-19 pandemic commenced.141 Miller was notorious for his isolationist ideology, and Russell claims that he had been strategizing since 2019 about how to suspend immigration through the Southern border altogether.142
In early March 2020, the Trump administration began to push the CDC’s Division of Migration and Quarantine to implement Title 42.143 However, Dr. Martin Cetron, who headed the Division of Migration and Quarantine, refused to do so because of a lack of a public health basis.144 Meanwhile, public health experts urged the administration to focus on a national mask mandate, enforce social distancing requirements, and increase contract tracers to determine how many individuals were exposed to the virus.145 Instead, former Vice President Mike Pence took matters into his own hands, and Pence’s top aide at the time, Olivia Troye, coordinated the White House Coronavirus Task Force.146 Vice President Pence, lawyers at Health and Human Services, and CBP directed the CDC director to close the United States’ borders to stop the spread of COVID-19, in contravention of advice from the CDC’s scientists who claimed “there was no evidence [doing so] would slow” the spread of the virus.147 However, Pence’s spokeswoman, Katie Miller, the wife of Trump’s senior policy adviser, Stephen Miller, denied that Pence directed the CDC on the issue.148
According to Troye, the administration “placed politics above public health.”149 She stated, “[t]here was a lot of pressure on DHS and CDC to push this forward,” and that it “was a Stephen Miller special. He was all over that.”150 Ms. Troye’s view of the administration’s priorities ultimately caused her to resign from her position.151 Reports from a former health official support Ms. Troye’s interpretation. A health official involved with the process claimed that, “[t]hey forced us,” and “[i]t is either do it or get fired.”152 On March 20, 2020 during a coronavirus task force press briefing, Trump falsely stated that it was the CDC that exercised its authority to implement Title 42.153
After the commencement of the Title 42 expulsions, Trump himself made multiple statements regarding the true intent of the policy. He “highlighted the decision to shut down the border as an argument for his reelection in November” 2020.154 He also stated, “[I]t’s a great feeling to have closed up the border,” adding, “[n]ow people come in, if they come in, through merit, if they come in legally. But they don’t come in like they used to.”155 He repeatedly boasted his ability to entirely close the border but did little to explain how sealing the border will improve the spread of COVID-19, especially when United States citizens continued to travel back and forth to locations such as England, where a new variant of COVID-19 was discovered.156 Lee Gelernt referred to the implementation of Title 42 as “what the Trump administration has been trying to do for four years and they finally saw a window.”157
By contrast, the acting CBP commissioner, Mark Morgan, referred to Title 42 as a “safeguard” for CBP agents stating, “[t]here’s no doubt that Title 42 has prevented more tragic loss among our workforce,” but noted that ten CBP employees died after contracting COVID-19.158 Evidence of CBP Officers violating the Texas-wide mask mandate which included a penalty of $250 for repeat violations, implied that CBP leadership may not have been focusing enough of its attention on ensuring that CBP officers follow basic safety guidance set out by the CDC.159 A special operations supervisor with the CBP Sector in Laredo, Texas responded to allegations by Physicians for Human Rights, which claimed a lack of public health sense behind Title 42 by stating, “I think that question is more political. It’s a matter of personal opinion, whether it’s six experts or six Border Patrol agents. I mean who are you going to trust . . . Just because they have an expert title in front of their thing?”160 The supervisor’s statements encapsulate Title 42’s impact as a harmful illusionary safeguard, which at its core is nothing more than a strategic political decision on the highly controversial matter of the right to seek asylum in the United States.
The existing enforcement of Title 42 is in violation of various parts of the INA, in particular 8 U.S.C. §§ 1158 and 1231(b)(3). Section 1158(a) establishes that every migrant must be granted an opportunity to apply for asylum.168 Known as the preeminent asylum law for arriving undocumented persons seeking protection, section 1158 states that “[a]ny alien who is physically present in the United States or who arrives in the United States . . . irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.”169 Additionally, section 1231(b)(3), known as statutory withholding of removal, prohibits the removal of an undocumented person to a country where their “life or freedom would be threatened . . . because of [their] race, religion, nationality, membership in a particular social group, or political opinion.”170 By rapidly expelling immigrants who are seeking protection, Title 42 violates 8 U.S. Code §§ 1158 & 1231(b)(3). In East Bay Sanctuary Covenant v. Trump, the court held that “the Interim Final rule,” which functioned as an asylum ban, is patently inconsistent with § 1158, and deemed it an “attempted . . . end-run around Congress” by the executive branch.171 The United States Supreme Court declined to stay the Ninth Circuit’s holding.172 Under the Interim Final Rule, individuals were able to apply for withholding of removal and CAT but not asylum.173 However, under Title 42 no eligible individuals can apply for protection, except a select few who may qualify for CAT.174
As in East Bay Sanctuary Covenant, the executive branch worked around Congress’s established immigration statutory framework to create what has caused another pseudo ban on asylum using Title 42. The Trump Administration did so by pressuring the CDC to wrongfully enforce the PHSA as “a shadow immigration enforcement power,” which the Biden Administration continues to uphold as of the publishing of this article.175 The implementation of Title 42 and its harmful effect is therefore more expansive than the Interim Final Rule, and thus should also be struck down due to its corresponding violation of the Refugee Act of 1980.
According to CBP guidance on the processing of immigrants and asylum seekers under Title 42, CAT is the only protection for which asylum seekers may be eligible.183 However, CBP officers are not to ask if arriving undocumented persons fear torture if returned to their country of origin or Mexico, rather, the onus lies on the asylum seeker to “make an affirmative, spontaneous and reasonably believable claim that they fear being tortured in the country they are being sent back to.”184 Border Patrol agents then have unilateral authority to determine if those claiming fear of torture should be referred for further assessment with an asylum officer.185
Since the Trump Administration’s enforcement of Title 42 expulsions in March 2020, until April 2021, at least 637,000 immigrants were processed and expelled under the policy, and of those processed, only 1,897 asylum-seekers have been able to request protection under CAT.186 In 2016, however, 408,870 immigrants were apprehended by CBP at the Southwest border, and of those apprehended, 37,060 were able to request protection under CAT.187 The percentage differential is striking: in 2016 the percentage of immigrants who requested relief under CAT was roughly 9.0% while in 2020, during the government’s implementation of Title 42, only 0.3% of covered undocumented persons did so.188 While migration trends often fluctuate and vary year to year, data indicates that civil and political unrest in the countries of origin from which the majority of migrants arriving in the United States come from has not improved.189 Rather, these countries have further destabilized, thereby likely increasing the number of persons that need to seek protection in the United States under CAT.190 Based on the decreased percentage of arriving migrants granted the opportunity to seek asylum since the implementation of Title 42 in March 2020, and the broad discretion that CBP has under Title 42, advocates rightfully believe that migrants expressing their fear of return to their countries of origin are being illegally deported to their home countries or to Mexico.191
Additionally, firsthand accounts of deportees who likely qualified for protection under CAT but were expelled under Title 42 further evidences the United States’ violation of CAT.192 For instance, a Haitian immigrant who goes by “Roseline,” fled Haiti after being raped and assaulted.193 Nonetheless, she was expelled to Haiti under Title 42 upon arriving to the United States and expressing her fear of return.194 Roseline was in such fear of returning to Haiti that she begged CBP agents not to return her, stating, “I begged [CBP agents] to be sent to Mexico . . . , but they said no they were sending me to Haiti.”195 Since being expelled to Haiti, Roseline has been in hiding.196 Assault and rape are both viable forms of recognized past torture, and although Roseline expressed her fear of future torture, she was deported by CBP without the opportunity to speak with an asylum officer.197 A multitude of similar reports have been made.198 Human Rights First tracked reports of Haitian deportees who fled Haiti after experiencing “violence, instability, and persecution.”199 By rapidly expelling numerous individuals in fear of torture back to their home or to Mexico, the United States is violating its legal obligations under CAT.
Like United States citizens, other “person[s]” within the United States are entitled to the constitutional protection of the Due Process Clause of the Fourteenth Amendment.205 The Supreme Court has staunchly held that “[t]he Fourteenth Amendment to the Constitution is not confined to the protection of citizens,” and that the Due Process Clause “applies to all ‘persons’ within the United States, including [noncitizens], whether their presence here is lawful, unlawful, temporary, or permanent.”206 For undocumented immigrants who have barely set foot into the United States, however, these due process rights are inapplicable. Undocumented immigrants “on the threshold of initial entry” into the country are only entitled to those “rights regarding admission that Congress has provided by statute.”207
In Department of Homeland Security v. Thuraissigiam, Thuraissigiam, an undocumented immigrant who was expelled from the United States after entering to seek asylum, argued that the federal statute under which he was expelled violated his due process rights.208 Thuraissigiam was stopped twenty-five yards after his entry into the United States, and after an asylum officer found “no evidence” that he was eligible for asylum, he was removed from the country.209 Finding that the respondent’s right to due process was not violated, the Supreme Court reiterated that newly arrived undocumented persons were not protected by the Due Process Clause, but instead only had those due process rights as conferred by Congress.210 The Court noted that “the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.”211 The Supreme Court reversed the Ninth Circuit decision, finding that the Due Process Clause was inapplicable, and that Thuraissigiam did receive due process of law as provided by the statute.212
While Thurassigiam and its predecessors are generally against offering rights to arriving undocumented persons, the Court’s holding that arriving undocumented persons are entitled to only those rights which Congress confers could work in favor of asylum seekers who may otherwise be expelled under Title 42. The INA is a statute conferred by Congress and affords certain qualified individuals a right to seek admission to the United States.213 Under the Thuraissigiam rationale, then, it is possible that if Title 42 procedures were challenged as violating arriving immigrants’ rights under the INA, that the court may find Title 42 violative of asylum seekers’ “rights regarding admission that Congress has provided by statute.”214 Thus, Title 42 may violate asylum seekers’ due process rights as conferred under the INA.
Further, Title 42 is unconstitutional due to its violation of the Fifth Amendment right to due process by wrongfully allowing CBP officers to conduct CAT screenings. CBP agents have unchecked authority to determine whether immigrants who fear torture in their country of origin qualify for CAT.215 According to 8 U.S.C. § 208.16, an asylum officer has the authority to assess whether the individual seeking protection has a viable claim for CAT. In A.B.-B. v. Morgan, the court held that plaintiffs demonstrated a likelihood of success on the merits of their claim that allowing CBP agents to conduct asylum interviews violates the INA.216 It was due to the CBP agents’ lack of training and their inability to “conduct the interview in a non-adversarial manner,” for which the court granted the motion for preliminary injunction to seize conducting asylum interviews.217 When CBP agents conduct asylum interviews, asylum seekers are deprived of their right to due process of law as a result of CBP agents’ inadequate training to conduct the screenings and their inherent adversarial position as law enforcement personnel.
Title 42 also likely violates expelled persons’ due process right because of its arbitrary discriminatory implementation against asylum seekers and children.218 In Hampton v. Wong, the United States Supreme Court ruled on a challenge to the validity of a regulation which “exclude[d] all persons except American citizens and natives of American Samoa from employment in most” federal employment positions.219 The Court held that this regulation by the United States Civil Service Commission, a federal agency, deprived the plaintiffs of their liberty without due process of law by arbitrarily applying discriminatory rules based on someone’s non-permanent resident status.220 In Title 42, the CDC limits the “Order Suspending the Right To Introduce Certain Persons From Countries Where a Quarantinable Communicable Disease Exists,” to an extremely narrow group of people by excluding:
U.S. citizens and lawful permanent residents; members of the armed forces of the United States . . . and associated personnel, and their spouses and children; persons from foreign countries who hold valid travel documents and arrive at a POE; [and] persons from foreign countries in the visa waiver program who are not otherwise subject to travel restrictions and arrive at a POE.221
The CDC provides no information regarding how only applying the order against asylum seekers and children improves public health, when all other exempt parties are not subject to the same restrictions regardless of whether they, too, are traveling from a country where a quarantinable communicable disease exists.222 Therefore, by the CDC discriminatorily targeting the “covered [undocumented persons],” it is depriving them an aspect of liberty, just as the CDC did against non-permanent residents in Hampton.223
Further, the Hampton court held that “due process requires that the decision to impose that deprivation of an important liberty be made either at a comparable level of government or . . . that it be justified by reasons which are properly the concern of that agency.”224 The CDC is neither at a comparable level of government to authorize immigration law, nor is the CDC justified by reasons that concern its agency to surpass the immigration law framework, and enforce the broad expulsion of asylum seekers. United States immigration law, including the INA and CAT, were implemented by Congress, and the CDC’s implementation of Title 42 as a federal agency is not a comparable level of government to Congress.225 Further, evidence shows that the CDC is not justified to implement Title 42 as a superseding law based on the reasons stated supra in the Section II.A. and II.D.
The court’s point must not be overlooked. A proper balance of power among the three branches of government is a foundational principal of the United States Constitution.230 As in Al Otro Lado, in implementing Title 42, the executive branch has overstepped its power by surpassing the immigration statutory framework created by Congress to further its own political initiatives.231 In order to address the executive’s overreach of Title 42, the judiciary should step in to equalize the balance of powers.
While the Biden Administration is making strides to reverse many of Trump’s anti-immigration policies, as of the publishing of this note, border officials continue to enforce Title 42 expulsions against single adults and families.237 A report of Title 42’s impact documents nearly 500 cases of violence against asylum seekers expelled under the Biden Administration.238
Haitian asylum seekers—a population that has been historically discriminated under United States immigration law239—continue to be particularly harmed by Title 42 under the new administration. In a few short weeks, the Biden Administration deported more Haitians than the Trump Administration did in an entire year.240 Lastly, President Biden continues former President Trump’s close dealings with Mexico by making an agreement that the United States will send Mexico surplus vaccines, and in exchange, Mexico has agreed to accept more families expelled from the United States under Title 42.241 The American Civil Liberties Union (ACLU) has filed numerous suits to block Title 42’s use to expel UNC and families.242 On November 18, 2020, in the ACLU’s case of P.J.E.S. v. Wolf, the District Court issued an order blocking the use of Title 42 to expel UNC.243 On January 29, 2021, however, a D.C. Court of Appeals stayed the order, thus allowing the expulsions of UNC to continue until the Biden Administration ceased the expulsions discretionarily in mid-March 2021.244 In Huisha-Huisha v. Gaynor, the D.C. District Court granted emergency orders prohibiting the deportation of several plaintiff families that were expelled under Title 42.245 A motion for class certification in Huisha-Huisha and a motion for preliminary injunction are currently pending.246
The CDC’s present implementation of Title 42 against covered undocumented persons furthers an illusion of a policy that stops the spread of COVID-19, but in actuality is only being used to offer a dangerous mirage of containment.247 The United States government has a history of attaching anti-immigration policy with communicable disease, enacting these policies against a backdrop of xenophobia and “racist and eugenicist conceptions of disease.”248 There is a great deal of evidence that the CDC’s implementation of Title 42 against the specified population was due to pressure by the Trump Administration to implement their anti-immigrant political ideology rather than establish safe public health measures.249 The Biden administration continues to expel single adults and families under Title 42.250 Furthermore, like the Trump Administration, the Biden Administration’s actions conflict with the stated purpose of sections 362 and 365 of the PHSA.
In March 2021, ICE crammed a group of asylum seekers onto a plane from South Texas to El Paso after Mexican officials refused to accept the migrants expelled under Title 42. In response, United States authorities flew the asylum seekers to another section of the United States border and expelled them to a separate part of Mexico.251 By flying to a separate part of the border it is likely that immigration officials and migrants were put at greater risk of COVID-19 due to the enclosed environment and recirculated airflow on the aircraft.252 Further, in June 2021, the Biden Administration continued the implementation of Title 42, but established two narrow routes to acquire an exemption to expulsions under the Title.253 The first track became available in late March 2021 and established a program which allowed thirty-five families to be let in daily.254 Prompted by the ACLU’s pending lawsuit against the Biden Administration for the continued use of Title 42, the program has the ACLU collect applications from organizations working with migrants and then submit them to CBP for consideration.255 The second track became available in May 2021 and permits 250 individuals deemed to be the most “vulnerable” to cross into the United States and pursue their claims.256 Six non-profit organizations were selected to work as a consortium to determine the most vulnerable cases to then be submitted to CBP for approval.257
Members of the consortium agreed to engage in the process based on the understanding that after July, Title 42 would be lifted.258 However, on August 2, 2021, the CDC issued an order that Title 42 expulsions 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 public health.”259 In protest, at the end of July 2021, two organizations from the consortium, International Rescue Committee and HIAS, halted their work with the government in an attempt to pressure the Biden Administration to end Title 42 expulsions.260 Also, due to the ACLU’s litigation challenging Title 42 restarting, the Administration announced the exemptions related to the lawsuit were ending.261 As of August 23, 2021, Linda Rivas stated that other organizations involved in the consortium have begun to withdraw their assistance to process individuals under the exemption to Title 42, in hopes to pressure the Biden Administration to uphold their agreement to end the expulsions and because they do not want to be complacent in harm that is caused by the expulsions.262
Immigrant rights advocates refer to the Biden Administration’s recent decision to indefinitely continue Title 42 expulsions—despite the government’s ability to process asylum seekers quickly under the exemption programs—as further evidence of its true purpose: a shadow immigration strategy rather than a public health policy.263 There are less inhumane measures that the Biden Administration must take immediately in order to uphold ratified international treaties, to uphold asylum law, and, in President Biden’s own words, to preserve our country’s “national conscience,” including “our long history of welcoming people of all faiths and no faiths at all.”264
The following are several recommendations that can be implemented to ensure public health regulations are upheld to the highest standard while also meeting the United States’ legal duties owed to asylum seekers. First, CBP should work with health professionals to screen asylum seekers, ensure that proper social distancing measures and personal protective equipment precautions are taken, add more screening, and implement potential quarantines for those exposed to the virus. Creative solutions to the lack of medical resources should be explored, such as rewarding United States Public Health Service Commissioned Corps employees with federal loan forgiveness to encourage prospective applicants. The Ready Reserve Corps may also assist if there is a shortage of healthcare professionals.265 Second, asylum seekers should be thoroughly and quickly processed and paroled to their family and/or friends within the interior of the United States266 until their immigration court proceedings. This way, asylum seekers can ensure they can adequately social distance and quarantine if necessary, thereby avoiding and slowing the spread of COVID-19 cases in CBP processing centers and immigration detention facilities. Third, international partnerships should be improved, particularly with nations that share a land border with the United States, as the United States can work with Mexico and Canada to ensure that sufficient precautions are taken due to the avid flow of persons between the two countries.267 Fourth, use the Migrant Protection Protocols wind-down model, which involves admitting asylum seekers by the hundreds with the assistance of various United Nations agencies operating in Mexico, and rapid testing all asylum seekers before allowing them to enter the United States.268
In conclusion, the use of the PHSA to implement the Title 42 asylum ban is an unprecedented overextension of executive power that is in violation of international and United States law. The CDC must immediately revoke the present use of Title 42, or the judicial system should step in to ensure a balance of power. Since those in power refuse to uphold our laws, we must take action to preserve Americans’ belief in our systems of law.
1 Maria Abi-Habib, On Mexico’s Border with U.S., Desperation as Migrant Traffic Piles Up, N.Y. Times (Mar. 14, 2021) (updated July 16, 2021), www.nytimes.com/2021/03/14/world/americas/mexico-border-biden.html (quoting Ruben Garcia, the founder of Annunciation House, one of the largest shelter networks in the United States).
∗ Sarah Eve Rosen is a law student at Northeastern University with a concentration in Poverty Law and Economic Justice, class of 2022. She majored in International Relations and Spanish with a minor in Political Science at the University of North Florida. Sarah has worked with individuals in almost every stage of the U.S. deportation machine, including DACA recipients, individuals in deportation proceedings, immigrants forced to wait in Mexico under the Migrant Protection Protocols, and those illegally denied their right to seek asylum under Title 42. This note would have not been possible if it was not for all the amazing support that I received throughout the writing process. I am grateful for the helpful inputs from Linda Rivas and Professor Wendy Parmet, Professor Jeremy Paul, and Shalyn Fluharty. A special thanks to Daniel Wells, Professor Hemanth Gundavaram, Dara Garcia, Alan Dicker, Cindy Sue Woods, and Julie Dargus for their invaluable support and feedback. Finally, a big thank you to Elisabeth Spector and all the editors at Northeastern University Law Review who worked tirelessly on this note.
2 Order Suspending Introduction of Persons from a Country Where a Communicable Disease Exists, 85 Fed. Reg. 16,567 (Mar. 24, 2020) (to be codified at 42 C.F.R. pt. 71).
3 The Public Health and Welfare Act, 42 U.S.C. §§ 265, 268; Lucas Guttentag, Coronavirus Border Expulsions: CDC’s Assault on Asylum Seekers and Unaccompanied Minors, Just Sec. (Apr. 13, 2020), https://www.justsecurity.org/69640/coronavirus-border-expulsions-cdcs-assault-on-asylum-seekers-and-unaccompanied-minors/.
4 Extension of Order Under Sections 362 and 365 of the Public Health Service Act; Order Suspending Introduction of Certain Persons from Countries Where a Communicable Disease Exists, 85 Fed. Reg. 22,424, 22,425 (Apr. 22, 2020).
5 Amendment and Extension of Order Under Sections 362 and 365 of the Public Health Service Act; Order Suspending Introduction of Certain Persons from Countries Where a Communicable Disease Exists, 85 Fed. Reg. 31,503, 31,504 (May 26, 2020) (explaining the May 20, 2020 order).
6 Id. at 31,503.
7 Transcript: Donald Trump’s Full Immigration Speech, Annotated, L.A. Times (Aug. 31, 2016), https://www.latimes.com/politics/la-na-pol-donald-trump-immigration-speech-transcript-20160831-snap-htmlstory.html.
8 See id.; A Brief History of Civil Rights in the United States, Geo. L. Libr., https://guides.ll.georgetown.edu/c.php?g=592919&p=4170926 (Aug. 26, 2021); Immigration & Migrants’ Rights, Int’l Just. Res. Ctr., https://ijrcenter.org/thematic-research-guides/immigration-migrants-rights/ (June 3, 2021) (listing and summarizing international laws regarding immigrant protections).
9 Alan Berube, Sanctuary Cities and Trump’s Executive Order, Brookings (Feb. 24, 2017), https://www.brookings.edu/blog/unpacked/2017/02/24/sanctuary-cities-and-trumps-executive-order/; Alan Yuhas & Mazin Sidahmed, Is this a Muslim Ban? Trump’s Executive Order Explained, Guardian (Jan. 31, 2017), https://www.theguardian.com/us-news/2017/jan/28/trump-immigration-ban-syria-muslims-reaction-lawsuits. See infra note 12.
10 Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Feb. 1, 2017). On January 27, 2017, one of the Trump Administration’s first actions was to implement what is referred to as “the Muslim ban.” Fox News Channel, Rudy Giuliani Admits It Is a Muslim Ban, YouTube, at 3:02 (Jan. 29, 2017), https://www.youtube.com/watch?v=aGOwEOTYfuE&t=175s. The first two executive orders banned travel to the United States “from seven predominantly Muslim countries—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen—and suspended the resettlement of all Syrian refugees.” Muslim Travel Ban, Immigr. Hist., https://immigrationhistory.org/item/muslim-travel-ban/ (last visited July 20, 2021). The order faced many legal challenges, resulting in injunctions by district courts, ruling that the plaintiffs challenging the Order would likely succeed on their claims that the Order violated the First Amendment and Immigration and Nationality Act. See id.; Timeline of the Muslim Ban, ACLU Wash., https://www.aclu-wa.org/pages/timeline-muslim-ban (last visited Aug. 9, 2021); Muslim Ban Litigation, Brennan Ctr. for Just. (Apr. 25, 2018) (updated Feb. 3, 2020), https://www.brennancenter.org/our-work/court-cases/muslim-ban-litigation. The Order went through multiple changes, the third iteration of which expanded the list of barred travelers to include nationals from Venezuela and North Korea. Muslim Travel Ban, supra. On June 26, 2018, the Supreme Court ruled on this third version of the executive order ban, ruling 5–4 that the President had the proper authority to issue the executive order. Trump v. Hawaii, 138 S. Ct. 2392, 2408–10 (2018). The five-justice majority disagreed with the lower courts, finding that the plaintiffs were not likely to succeed in their claim that the Order was unconstitutional, and reversed the preliminary injunctions of the lower courts, allowing the third iteration of the order to go into effect. Id. at 2423; Ernesto Sagás & Ediberto Román, Build the Wall and Wreck the System: Immigration Policy in the Trump Administration, 26 Tex. Hisp. J.L. & Pol'y 21, 28 (2020). For further information regarding how the asylum system is broken see David Frum, America’s Asylum System Is Profoundly Broken, Atlantic (July 3, 2019), https://www.theatlantic.com/ideas/archive/2019/07/why-americas-immigration-system-is-broken/593143/; Shalini Bhargava Ray, Optimal Asylum, 46 Vand. J. Transnat'l L. 1215, 1229–31 (2013); Asylum in the United States, Am. Immigr. Council (June 11, 2020), https://www.americanimmigrationcouncil.org/research/asylum-united-states.
11 Migrant Protection Protocols, U.S. Dep’t Homeland Sec. (Jan. 24, 2019), https://www.dhs.gov/news/2019/01/24/migrant-protection-protocols. On January 24, 2019, Secretary of Homeland Security, Kirstjen Nielson announced the implementation of section 235(b)(2)(C) of the Immigration and Nationality Act (INA). Id. The policy forced certain asylum-seekers to wait in Mexico through the duration of their cases pending in the U.S. immigration court system. Memorandum from Kirstjen M. Nielsen, Sec’y, U.S. Dept. of Homeland Sec., to L. Francis Cissna, Dir., U.S. Citizenship & Immigr. Servs., Kevin K. McAleenan, Comm’r, U.S. Customs & Border Prot., and Ronald D. Vitiello, Deputy Dir. & Senior Off. Performing the Duties of Dir., U.S. Immigr. & Customs Enf’t 2 (Jan. 25, 2019), https://www.dhs.gov/sites/default/files/publications/19_0129_OPA_migrant-protection-protocols-policy-guidance.pdf; see also Ben Harrington & Hillel R. Smith, Cong. Rsch. Serv., LSB10251, “Migrant Protection Protocols”: Legal Issues Related to DHS’s Plan to Require Arriving Asylum Seekers to Wait in Mexico 1–2 (2019).
12 Telephone Interview with Linda Rivas, Exec. Dir. & Managing Att'y, Las Americas Immigr. Advoc. Ctr. in El Paso, Tex. (Aug. 23, 2021). In the early and mid-2010s, the Obama Administration built family detention facilities in Burkes County, Pennsylvania; Karnes City, Texas; and Dilley, Texas. See Family Detention, Det. Watch Network, https://www.detentionwatchnetwork.org/issues/family-detention (last visited Aug. 9, 2021); Caitlin Dickerson, Border at ‘Breaking Point’ as More than 76,000 Unauthorized Migrants Cross in a Month, N.Y. Times (Mar. 5, 2019), https://www.nytimes.com/2019/03/05/us/border-crossing-increase.html. Some family units are sent to one of these facilities, which under law they are not meant to be at longer than twenty days; however, Immigration and Customs Enforcement (ICE) continues hold families for longer. Family Detention, supra; US: Trauma in Family Immigration Detention, Hum. Rts. Watch (May 15, 2015), https://www.hrw.org/news/2015/05/15/us-trauma-family-immigration-detention-0; Caitlin Dickerson, U.S. Expels Migrant Children from Other Countries to Mexico, N.Y. Times (Oct. 30, 2020) (updated Mar. 15, 2021), https://www.nytimes.com/2020/10/30/us/ migrant-children-expulsions-mexico.html. It is not clear how ICE/CBP determines which family units will be detained and which will be released into the U.S. to continue their immigration court proceedings while living with family or friends. Telephone Interview with Linda Rivas, supra. More recently in 2019, when the number of arriving family units was extremely high, during just one week in February 2019, an El Paso shelter received 3,600 migrants, and had to scramble to secure housing for these families. U.S. Expels Migrant Children from Other Countries to Mexico, supra.
13 U.S. Dep't of Health & Hum. Servs., Ctrs. for Disease Control & Prevention (CDC), Order Under Sections 362 & 365 of the Public Health Service Act (42 U.S.C. §§ 265, 268): Order Suspending the Right to Introduce Certain Persons from Countries Where a Quarantinable Communicable Disease Exists (Oct. 13, 2020), www.cdc.gov/coronavirus/downloads/10.13.2020-CDC-Order-Prohibiting-Introduction-of-Persons-FINAL-ALL-CLEAR-encrypted.pdf.
14 42 U.S.C. §§ 265, 268.
15 Id.
16 Id.
17 Malaria, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/malaria/about/history/history_cdc.html (July 23, 2018); Katherine L. Vanderhook, A History of Federal Control of Communicable Diseases: Section 361 of the Public Health Service Act 56–60 (Apr. 30, 2002) (third year paper, Harvard University) (on file with Harvard Library), https://dash.harvard.edu/bitstream/handle/1/8852098/vanderhook2.pdf?sequence=2&isAllowed=y.
18 Guttentag, supra note 3.
19 Id.
20 Vanderhook, supra note 17, at 1.
21 Id.
22 Id. at 4–5.
23 Act of Mar. 3, 1891, ch. 551, 26 Stat. 1084; Vanderhook, supra note 17, at 28.
24 Id. at 88.
25 Minneapolis v. Milner, 57 F. 276, 279 (C.C.W.D. Mich. 1893).
26 Hennington v. Georgia, 163 U.S. 299, 309 (1896); Vanderhook, supra note 17, at 28. U.S. Const. art. VI, § 1, cl. 2.
27 Louisiana v. Mathews, 427 F. Supp. 174, 175–76 (E.D. La. 1977).
28 Vanderhook, supra note 17, at 71–72.
29 See id. at 72.
30 Louisiana v. Mathews, 427 F. Supp. 174 at 176; see also Vanderhook, supra note 17, at 72.
31 See Guttentag, supra note 3.
32 Reynaldo Leaños Jr., COVID-19 at the Border: Unprecedented Use of Law Expels Migrants ‘As Quickly As Possible,’ Hous. Pub. Media (July 28, 2020), https://www.houstonpublicmedia.org/articles/news/border/2020/07/28/378675/covid-19-at-the-border-unprecedented-use-of-law-expels-migrants-as-quickly-as-possible/.
33 Guttentag, supra note 3. While the PHSA §§ 362 and 365 has not been used to exclude broad swathes of people attempting to enter the United States prior to 2019, provisions of the Immigration and Nationality Act (INA) have long been used to exclude and stigmatize particular groups of people on health grounds. Leaños supra; April Thompson, The Immigration HIV Exclusion: An Ineffective Means for Promoting Public Health in a Global Age, 5 Hous. J. Health L. & Pol’y 145, 151–153 (2005). For example, in 1987 HIV-positive non-citizens were excluded from entrance to the U.S. on health-related grounds under the INA until 2010. Thompson supra, at 152–153; Susanna E. Winston & Curt G. Beckwith, The Impact of Removing the Immigration Ban on HIV-Infected Persons, 25 AIDS Patient Care & STDs 709, 709 (2011).
34 David Yaffe-Bellany et al., Asylum-Seekers Say They Cross the Border Illegally Because They Don’t Think They Have Other Options, Tex. Trib. (Aug. 16, 2018), https://www.texastribune.org/2018/08/16/migrants-who-cross-border-illegally-say-theyre-unaware-alternatives/; Why Do Some Asylum Seekers Cross the U.S. Southern Border Between Ports of Entry?, Hum. Rts. First (Nov. 2018), https://www.humanrightsfirst.org/sites/default/files/US-Southern-Border-Fact-Sheet.pdf; see also infra note 125 (defining “human smuggler”).
35 See Yaffe-Bellany et al., supra note 34; Immigration Detention in the United States by Agency, Am. Immigr. Council (Jan. 2, 2020), https://www.americanimmigrationcouncil.org/sites/default/files/research/immigration_detention_in_the_united_states_by_agency.pdf; see also infra Section II.D.2.
36 Annie Rose Ramos & Suzanne Gamboa, Shelters Step up to Aid more Immigrant Families Brought to Their Doors by ICE, NBC News (Oct. 14, 2018), https://www.nbcnews.com/news/latino/shelters-step-aid-more-immigrant-families-brought-their-doors-ice-n919426.
37 Detention Management, U.S. Immigr. & Customs Enf’t, www.ice.gov/detain/detention-management (Aug. 24, 2021).
38 Throughout this article, UNC will be used to refer both to the plural “unaccompanied noncitizen children” and the singular “unaccompanied noncitizen child.” An unaccompanied child, referred to in this article as an “unaccompanied noncitizen child,” is an individual “[with] no lawful immigration status in the United States[,] [i]s under 18 years of age[,] [and] [h]as no parent or legal guardian in the United States or no parent or legal guardian in the United States is available to provide care and physical custody.” About the Program, Off. of Refugee Resettlement (Apr. 29, 2021), https://www.acf.hhs.gov/orr/programs/ucs/about. Unaccompanied minors are referred to as Unaccompanied Alien Children (UAC) under Title 6 of the U.S. Code in section 279 on children’s affairs. 6 U.S.C. § 279(g)(2); A Guide to Children Arriving at the Border: Laws, Policies and Responses, Am. Immigr. Council (June 26, 2015), https://www.americanimmigrationcouncil.org/sites/default/files/research/a_guide_to_children_arriving_at_the_border_and_the_laws_and_policies_governing_our_response.pdf; Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 84 Fed. Reg. 44,392, 44,415 (Aug. 23, 2019) (to be codified at 8 C.F.R. pts. 212, 236, 45 C.F.R. pt. 410). However, because of the xenophobic nature of the word “alien” the Biden Administration ordered immigration agencies to no longer use the term. See Nicole Acevedo, Biden Seeks to Replace ‘Alien’ with Less ‘Dehumanizing Term’ in Immigration Laws, NBC News (Jan. 22, 2021), www.nbcnews.com/news/latino/biden-seeks-replace-alien-less-dehumanizing-term-immigration-laws-n1255350. It can be inferred that some courts are also incorporating the progressive language change, referring to unaccompanied migrant children as “unaccompanied minors,” and “unaccompanied noncitizen children.” See, e.g., Flores v. Rosen, 984 F.3d 720, 726 (9th Cir. 2020); P.J.E.S. v. Wolf, 502 F. Supp. 3d 492, 501 (D.D.C. 2020); L. v. U.S. Immigr. & Customs Enf't, 310 F. Supp. 3d 1133, 1136 (S.D. Cal. 2018). But see J.S.G. ex rel. Hernandez v. Stirrup, No. SAG-20-1026, 2020 WL 1985041, at *8 (D. Md. Apr. 26, 2020) (using “unaccompanied alien children”).
39 See J.S.G. ex rel. Hernandez, 2020 WL 1985041, at 8; William A. Kandel & Lisa Seghetti, Cong. Rsch. Serv., R43599, Unaccompanied Alien Children: An Overview 8–10 (2015).
40 Nick Miroff, Under Coronavirus Immigration Measures, U.S. Is Expelling Border-Crossers to Mexico in an Average of 96 Minutes, Wash. Post (Mar. 30, 2020), https://www.washingtonpost.com/immigration/coronavirus-immigration-border-96-minutes/2020/03/30/13af805c-72c5-11ea-ae50-7148009252e3_story.html; see also Nationwide Enforcement Encounters: Title 8 Enforcement Actions and Title 42 Expulsions, U.S. Customs & Border Prot., https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics/title-8-and-title-42-statistics (Aug. 12, 2021).
41 See Rafael Bernal, US Border Agents Sending Unaccompanied Children from Other Countries to Mexico: Report, Hill (Oct. 30, 2020), https://thehill.com/latino/523622-us-border-agents-sending-unaccompanied-children-from-other-countries-to-mexico-report; John Ruwitch, Biden Moves to End Trump-Era Asylum Agreements with Central American Countries, NPR (Feb. 6, 2021), https://www.npr.org/2021/02/06/964907437/biden-moves-to-end-trump-era-asylum-agreements-with-central-american-countries.
42 Dara Lind, Leaked Border Patrol Memo Tells Agents to Send Migrants Back Immediately — Ignoring Asylum Law, ProPublica (Apr. 2, 2020), https://www.propublica.org/article/leaked-border-patrol-memo-tells-agents-to-send-migrants-back-immediately-ignoring-asylum-law.
43 See Julia Ainsley, Since Trump Restricted Flow at Border, More Migrants Trying to Sneak Through Undetected, NBC News (Mar. 1, 2019), https://www.nbcnews.com/politics/immigration/trump-restricted-flow-border-more-migrants-trying-sneak-through-undetected-n976356.
44 United States immigration policies, historically and currently discriminate against People of Color, and are especially invidious towards Black immigrants. DeArbea Walker, Haitians Are Still Being Deported from the Border. Experts Say Their Plight Exposes Bias Against Black Refugees, Insider (Oct. 1, 2021), https://www.insider.com/haitian-deportations-expose-disparate-treatment-of-black-immigrants-2021-10. An example of such anti-Black policy includes the expulsion of Haitian Immigrants seeking safety in the United States in the early 1990s. Haitian immigrant were intercepted by United States Immigration Enforcement before reaching land, and indefinitely detained at the Guantanamo Bay naval base, while others were quickly expelled to their home country, similar to Title 42. Brandt Goldstein, Storming the Court, How a Band of Law Students Fought the President and Won, 18–19, 129–130 (2006); A. Naomi Paik, US Turned Away Thousands of Haitian Asylum-Seekers and Detained Hundreds More in the 90s, Conversation (June 28, 2018), https://theconversation.com/us-turned-away-thousands-of-haitian-asylum-seekers-and-detained-hundreds-more-in-the-90s-98611; Carlos Ortiz Miranda, Haiti and the United States During the 1980s and 1990s: Refugees, Immigration, and Foreign Policy, 32 San Diego L. Rev. 673, 680¬–82 (1995); see also Aaron Morrison et al., Haitians See History of Racist Policies in Migrant Treatment, AP News (Sept. 24, 2021), https://apnews.com/article/immigration-race-and-ethnicity-mexico-haiti-asylum-seekers-a81ac1148118db38824d2d8f62139b87; US: Treatment of Haitian Migrants Discriminatory, Hum. Rts. Watch (Sept. 21, 2021), https://www.hrw.org/news/2021/09/21/us-treatment-haitian-migrants-discriminatory; Richard Fowler, A Black Immigrant’s Mission to Center Black Migrants at the Southern Border, Forbes (July 29, 2021), https://www.forbes.com/sites/forbestheculture/2021/07/29/a-black-immigrants-mission-to-center-black-migrants-at-the-southern-border/?sh=3a464e3d2b93.
45 Notice of Order Under Sections 362 and 365 of the Public Health Service Act Suspending Introduction of Certain Persons from Countries Where a Communicable Disease Exists, 85 Fed. Reg. 17,060, 17,061 (Mar. 26, 2020).
46 See, e.g., Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102,703 (codified as amended at 8 U.S.C. § 1101(a)(42)); The 1967 Protocol, Kaldor Ctr. for Int’l Refugee L. (Mar. 31, 2020), https://www.kaldorcentre.unsw.edu.au/publication/1967-protocol (“[T]he United States . . . has ratified the 1967 Protocol. This means that it is bound to apply the Convention’s provisions, which commit it to treating refugees in accordance with internationally recognized legal and humanitarian standards.”); Order Suspending the Right to Introduce Certain Persons from Countries Where a Communicable Disease Exists, 85 Fed. Reg. 65,806, 65,807 (Oct. 16, 2020).
47 Extension of Order Under Sections 362 and 365 of the Public Health Service Act; Order Suspending Introduction of Certain Persons from Countries Where a Communicable Disease Exists, 85 Fed. Reg. 22,424 (Apr. 22, 2020).
48 U.S. Dep't of Health & Hum. Servs., Ctrs. for Disease Control & Prevention (CDC), supra note 13.
49 Id.
50 Order Suspending the Right to Introduce Certain Persons from Countries Where a Communicable Disease Exists, 85 Fed. Reg. at 65,807.
51 Id.
52 Extension of Order Under Sections 362 and 365 of the Public Health Service Act; Order Suspending Introduction of Certain Persons from Countries Where a Communicable Disease Exists, 85 Fed. Reg. at 22,425.
53 Id.
54 Tanvi Misra, Revealed: US Citizen Newborns Sent to Mexico Under Trump-era Border Ban, Guardian (Feb. 5, 2021), https://www.theguardian.com/us-news/2021/feb/05/us-citizen-newborns-mexico-migrant-women-border-ban.
55 Id. In National Immigration Litigation Alliance v. U.S. Customs and Border Protection, No. 1:2021-cv-11094 (D. Mass. filed July 1, 2021), Plaintiffs filed suit on July 1, 2021, for CBP’s failure to produce records “relating to policies, guidance, or statistics regarding the treatment of pregnant women in CBP custody,” and “mothers in CBP custody who have given birth within the United States within the last six months.” Complaint for Declaratory and Injunctive Relief at 1, Nat’l Immigr. Litig. All. v. U.S. Customs & Border Prot., No. 1:2021-cv-11094, ECF No. 1.
56 See Mimi Dwyer et al., A Migrant Mother Saw Her Disabled Son Walk into the U.S. Then He Disappeared, Reuters (Sept. 10, 2020), https://www.reuters.com/article/us-usa-immigration-children-insight/a-migrant-mother-saw-her-disabled-son-walk-into-the-u-s-then-he-disappeared-idUSKBN2611TB.
57 U.S. Dep't of Health & Hum. Servs., Ctrs. for Disease Control & Prevention (CDC), supra note 13, at 1–2.
58 Id. at 2.
59 Id.
60 Id. at 2–3.
61 Id. at 12.
62 Id. at 11–12.
63 Id. at 12.
64 Camilo Montoya-Galvez, Under Trump-era Border Rule That Biden Has Kept, Few Asylum-Seekers Can Seek U.S. Refuge, CBS News (Apr. 14, 2021), https://www.cbsnews.com/news/refugee-asylum-seekers-immigration-limit-trump-biden/.
65 Quinn Owen & Kiara Brantley-Jones, CBP Chief Defends Rapid Border ‘Expulsions’ as Unauthorized Crossing Attempts Grow, ABC News (Aug. 6, 2020), https://abcnews.go.com/US/cbp-chief-defends-rapid-border-expulsions-unauthorized-crossing/story?id=72223995.
66 Id.
67 Norma Martinez et al., Fronteras: Denied, Deported and Abandoned — Assault on U.S. Asylum, Tex. Pub. Radio (July 24, 2020), https://www.tpr.org/show/fronteras/2020-07-24/fronteras-denied-deported-and-abandoned-assault-on-u-s-asylum.
68 Id.
69 Nomaan Merchant & Evens Sanon, US Detaining More Migrant Children in Hotels Despite Outcry, AP News (Aug. 27, 2020), https://apnews.com/article/ae51966763a7d6ddf6a8a17d78cbc874.
70 Id.
71 See id.
72 William A. Kandel, Cong. Rsch. Serv., R43599, Unaccompanied Alien Children: An Overview 4–5 (2019).
73 507 U.S. 292 (1993).
74 Id. at 294, 315. Defendants’ Response in Opposition to Plaintiffs’ Motion to Enforce Settlement of Class Action at 4, Flores v. Barr, 407 F. Supp. 3d 909 (C.D. Cal. 2019) (No. CV 85-4544), 2015 WL 13648967.
75 Defendants’ Response in Opposition to Plaintiffs’ Motion to Enforce Settlement of Class Action, supra note 74, at 4; The Flores Settlement, Immigr. Hist., https://immigrationhistory.org/item/the-flores-settlement/ (last visited July 3, 2021); see also Ctr. for Hum. Rts. & Const. L., https://www.centerforhumanrights.org/ (last visited July 3, 2021).
76 Flores v. Lynch, 828 F.3d 898, 901 (9th Cir. 2016) (internal quotations omitted).
77 Id. at 901, 903.
78 Id. at 903.
79 See Danilo Zak, Fact Sheet: Unaccompanied Migrant Children (UACs), Nat’l Immigr. F. (Nov. 2, 2020), https://immigrationforum.org/article/fact-sheet-unaccompanied-migrant-children-uacs/.
80 Children Entering the United States Unaccompanied: Section 3, 3.3.5 Academic Educational Services, Off. of Refugee Resettlement (Apr. 20, 2015) (updated Apr. 24, 2017), https://www.acf.hhs.gov/orr/policy-guidance/children-entering-united-states-unaccompanied-section-3#3.3.5; Abbie Gruwell, Unaccompanied Minors and the Flores Settlement Agreement: What to Know, Nat’l Conf. of State Legislatures: NCSL Blog (Oct. 30, 2018), https://www.ncsl.org/blog/2018/10/30/unaccompanied-minors-and-the-flores-settlement-agreement-what-to-know.aspx.
81 Zak, supra note 79.
82 U.S. Expels Migrant Children from Other Countries to Mexico, supra note 12. The Trump administration began referring to migrant children who cross the border alone differently in October 2020 referring to them as “single minors” rather than “unaccompanied alien children” — reinforcing the notion that while the pandemic-related border closure is in place, such children are not eligible for the legal protections that would otherwise have been available to them. Id.
83 Bernal, supra note 41.
84 Nomaan Merchant, AP Exclusive: Migrant Kids Held in US Hotels, Then Expelled, AP News (July 22, 2020), https://apnews.com/article/u-s-news-arizona-only-on-ap-politics-immigration-c9b671b206060f2e9654f0a4eaeb6388.
85 Mary Jo Pitzl, US Government Sued After Report of Detained Migrant Children at Hampton Inn Hotels, USA Today (July 27, 2020), https://www.usatoday.com/story/news/nation/2020/07/27/arizona-rocky-history-shelters-detained-immigrant-kids/5517309002/.
86 The private federal contractor, MVM advertises their services as "solutions” for "customer challenges.” Our Services, Effective Solutions that Yield Real Results., MVM Inc., www.mvminc.com/our-services/ (last visited July 29, 2021). MVM, a Virginia-based federal contractor has received contracts up to $248 million to transport immigrant minors since 2014. In 2018, MVM was under scrutiny for housing UNC in two Phoenix office buildings that had neither a kitchen nor shower, where children were said to bathe in sinks in the office building’s bathroom. See Aura Bogado, Immigrant Kids Held in Second Phoenix Office Seen Bathing in Sinks, World (July 17, 2018), https://www.pri.org/stories/2018-07-17/exclusive-immigrant-kids-held-second-phoenix-office-seen-bathing-sinks. Previous employees of MVM have also claimed that while providing security for CIA overseas the personnel were poorly trained and had unresponsive senior management regardless of multiple complaints of weapons going missing. Siobhan Gorman & August Cole, Iraq Case Sheds Light on Secret Contractors, Wall St. J. (July 17, 2008), https://www.wsj.com/articles/SB121485921602717113; Lauren Villagran, A New El Paso Shelter for Migrant Children Opened Its Doors. But Where Are the Kids?, El Paso Times (Oct. 16, 2020), https://www.elpasotimes.com/story/news/2020/10/16/el-paso-migrant-shelter-opens-few-children-trump-covid-policy/5924590002/.
87 A Guide to Title 42 Expulsions at the Border, Am. Immigr. Council 3, 6 (Mar. 29, 2021), https://www.americanimmigrationcouncil.org/sites/default/files/research/title_42_expulsions_at_the_border.pdf; Camilo Montoya-Galvez, ICE Held 660 Migrant Kids Set for Expulsion in Hotels, Independent Monitor Reveals, CBS News (Aug. 27, 2020), https://www.cbsnews.com/news/migrant-children-hotels-expelled-ice-flores-agreement-monitor/.
88 Dara Lind & Lomi Kriel, ICE Is Making Sure Migrant Kids Don’t Have COVID-19 – Then Expelling Them to “Prevent the Spread” of COVID-19, ProPublica (Aug. 10, 2020), https://www.propublica.org/article/ice-is-making-sure-migrant-kids-dont-have-covid-19-then-expelling-them-to-prevent-the-spread-of-covid-19.
89 U.S. Expels Migrant Children from Other Countries to Mexico, supra note 12.
90 Dwyer et al., supra note 56.
91 Id.
92 Id.
93 Id.
94 Id.
95 See Corky Siemaszko, Dr. Fauci Contradicts Trump’s False Claim that Covid-19 Is As Deadly As Flu, NBC News (Oct. 6, 2020), https://www.nbcnews.com/news/us-news/dr-fauci-contradicts-trump-s-false-claim-covid-19-deadly-n1242340.
96 Jason Dearen & Garance Burke, Pence Ordered Borders Closed After CDC Experts Refused, AP News (Oct. 3, 2020), https://apnews.com/article/virus-outbreak-pandemics-public-health-new-york-health-4ef0c6c5263815a26f8aa17f6ea490ae.
97 Id.
98 952 F.3d 999 (9th Cir. 2020); CDC Relied on False Assertions in Issuing COVID-19 Order Being Used to Illegally Override U.S. Asylum Laws, Hum. Rts. First 1 (June 2020), https://www.humanrightsfirst.org/sites/default/files/CDCReliedonFalseAssertionsinIssuingOrderUsedtoIllegallyOverrideAsylumLaw.pdf.
99 Id.
100 Id.
101 Id.
102 See id.
103 Id. at 1–2.
104 See supra Section II.C.
105 See U.S. Expels Migrant Children from Other Countries to Mexico, supra note 12.
106 Id.
107 Id.
108 Owen & Brantley-Jones, supra note 65.
109 Lind & Kriel, supra note 88.
110 Id. The procedures of care for unaccompanied children that tested positive for COVID-19 were so unclear that fifty-eight Congress people included a question on the matter in a letter to Chad Wolf and Robert Redfield. Letter from Judy Chu, Member of Cong., et al. to Chad Wolf, Acting Sec'y of the Dep't of Homeland Sec., and Robert R. Redfield, Dir. of Centers for Disease Control and Prevention (Oct. 30, 2020), https://chu.house.gov/sites/chu.house.gov/files/documents/Final%20DHS%20CDC%20Letter%20on%20UAC%20Expulsions.pdf.
111 Hamed Aleaziz, ICE Expelled 32 Immigrant Children Back to Guatemala After a Judge Said They Couldn’t, Buzzfeed News (Nov. 24, 2020), https://www.buzzfeednews.com/article/hamedaleaziz/immigrant-children-guatemala-ice-flight.
112 Lauren Villagran, The Trump Administration Is Turning Away Unaccompanied Children at the Border Because of Coronavirus, Austin American-Statesman (June 15, 2020), https://www.statesman.com/story/news/2020/06/15/trump-administration-is-turning-away-unaccompanied-children-at-border-because-of-coronavirus/113967552/.
113 Lind & Kriel, supra note 88.
114 Id.
115 Merchant & Sanon, supra note 69.
116 Id.
117 See Ann Crawford-Roberts, A History of United States Policy Towards Haiti, Modern Latin Am., library.brown.edu/create/modernlatinamerica/chapters/chapter-14-the-united-states-and-latin-america/moments-in-u-s-latin-american-relations/a-history-of-united-states-policy-towards-haiti/ (last visited Oct. 4, 2021).
118 Walker, supra note 44.
119 Jacqueline Charles & Michael Wilner, U.S. Special Envoy to Haiti Resigns Over Repatriation of Haitians from U.S.-Mexico Border, Miami Herald (Sept. 24, 2021), https://www.miamiherald.com/news/nation-world/world/americas/haiti/article254455828.html.
120 See Owen & Brantley-Jones, supra note 65.
121 Elliot Spagat, Migrants Quickly Expelled by Trump Try Repeatedly to Cross, AP News (Oct. 28, 2020), https://apnews.com/article/politics-virus-outbreak-san-diego-mexico-immigration-a108552c67d94597bf58afb9c791673a.
122 See Taylor Levy, Immigr. Att’y, Immigrant Just. Idaho, Speaker at Asylum and Border Turmoil Panel Discussion at the 2020 Fall Immigration Skills Conference (Nov. 5, 2020); Ainsley, supra note 43.
123 Nick Miroff, Immigration Arrests Along the Mexico Border Surged Again in October, Wash. Post (Nov. 19, 2020), https://www.washingtonpost.com/immigration/border-arrests-surge-cctober-trump/2020/11/19/4155cf7a-2ab2-11eb-b847-66c66ace1afb_story.html.
124 U.S. Expels Migrant Children from Other Countries to Mexico, supra note 12.
125 Rafael Carranza, As Border Wall Goes up, Southern Arizona Sees Spike in Human Smuggling, azcentral (Nov. 30, 2020), https://www.azcentral.com/story/news/politics/border-issues/2020/11/30/border-wall-goes-up-southern-arizona-sees-spike-human-smuggling/3772462001/; see also Damià S. Bonmatí, A Day in the Life of a Coyote: Smuggling Migrants from Mexico to the United States, Univision News (Dec. 21, 2016), https://www.univision.com/univision-news/immigration/a-day-in-the-life-of-a-coyote-smuggling-migrants-from-mexico-to-the-united-states. When an immigrant or asylum seeker wants to enter the United States by a land POE through Mexico, they cannot simply walk to the bridge or landscape outside of a POE to enter the U.S. This is because drug cartels own different portions of the border and will only allow an immigrant or asylum seeker to cross their territory with a human smuggler, known as a “Coyote,” after the Coyote has paid the cartel a bribe to cross the immigrant. If an immigrant attempted to cross without a Coyote, they may be kidnapped or killed. Id.
126 Levy, supra note 122.
127 See Carranza, supra note 125.
128 Id.
129 Id.
130 Alfredo Corchado, Deaths Rise in the Desert as Migrants Try to Cross into the U.S. Again and Again Under Biden Policy, Dall. Morning News (June 26, 2021), https://www.dallasnews.com/news/immigration/2021/06/26/deaths-rise-in-the-desert-as-migrants-try-to-cross-into-the-us-again-and-again-under-biden-policy/.
131 Emily Kassie & Barbara Marcolini, ‘It Was Like a Time Bomb’: How ICE Helped Spread the Coronavirus, N.Y. Times (July 10, 2020) (updated Apr. 25, 2021), https://www.nytimes.com/2020/07/10/us/ice-coronavirus-deportation.html.
132 It is likely that the number of countries that have received deportees from the United States is a grave undercounting because the data information regarding the amount of deportees from the United States that tested positive for COVID-19, are dependent on the testing procedures of the country to which individuals are deported. Nicole Phillips & Tom Ricker, The Invisible Wall: Title 42 and Its Impact on Haitian Migrants, Quixote Ctr. 22–23, https://www.quixote.org/wp-content/uploads/2021/03/The-Invisible-Wall.pdf (last visited Oct. 3, 2021).
133 Id. at 22.
134 Anna-Catherine Brigida & Morena Pérez Joachin, The Coronavirus Pipeline, Tex. Observer (Aug. 12, 2020), https://www.texasobserver.org/the-coronavirus-pipeline/.
135 Id.
136 Daniel Gonzalez, ‘They Were Sending the Virus’: Guatemala Reels After U.S. Deports Hundreds of Deportees with COVID-19, azcentral (Oct. 28, 2020), www.azcentral.com/story/news/politics/immigration/2020/10/28/hundreds-deported-by-us-to-guatemala-during-pandemic-had-covid-19/5902239002/.
137 Id.
138 Id.
139 See Tracy Wilkinson, Trump’s Message to Central America: Want Ventilators? Help Us with Immigration, L.A. Times (Apr. 24, 2020), https://www.latimes.com/world-nation/story/2020-04-24/trumps-message-to-latin-america-want-ventilators-help-us-with-immigration.
140 See The Public Health and Welfare Act, 42 U.S.C. § 265.
141 Morgan Russell, Immigr. Rts. Project Immigr. Att’y, Immigrant Just. Idaho, Speaker at Asylum and Border Turmoil Panel Discussion at the 2020 Fall Immigration Skills Conference (Nov. 5, 2020); see also Q&A: US Title 42 Policy to Expel Migrants at the Border, Hum. Rts. Watch (Apr. 8, 2021), https://www.hrw.org/news/2021/04/08/qa-us-title-42-policy-expel-migrants-border.
142 Russell, supra note 141; see also Sabrina Siddiqui, Meet Stephen Miller, Architect of First Travel Ban, Whose Words May Haunt Him, Guardian (Mar. 15, 2017), https://www.theguardian.com/us-news/2017/mar/15/stephen-miller-new-trump-travel-ban.
143 Dearen & Burke, supra note 96.
144 Id.
145 Id.
146 Id.
147 Id.
148 Id.
149 Id.
150 Id.
151 See id.
152 Id.
153 Id.
154 Id.
155 Id.
156 See Isabella Grullón Paz, The Week in Covid-19 News: Reassuring Data on the AstraZeneca Vaccine, 24 States Are Inoculating Teachers and More., N.Y. Times (Feb. 6, 2021) (updated Apr. 9, 2021), https://www.nytimes.com/live/2021/02/06/world/covid-19-coronavirus/the-week-in-covid-19-news-reassuring-data-on-the-astrazeneca-vaccine-24-states-are-inoculating-teachers-and-more; Priscilla Alvarez, Health Experts Slam Trump Administration’s Use of Public Health Law to Close Border, CNN (May 18, 2020), https://www.cnn.com/2020/05/18/politics/border-closure-public-health/index.html.
157 Dearen & Burke, supra note 96.
158 Nomaan Merchant, Seeking Refuge in US, Children Fleeing Danger Are Expelled, AP News (Aug. 6, 2020), https://apnews.com/article/virus-outbreak-ap-top-news-honduras-mexico-health-1144b498194cd6b6818acd04d7880e05; Erin Rodriguez, Border Patrol Agent Remembered Who Died from Coronavirus, KENS5 (Aug. 6, 2020) (updated Aug. 7, 2020), https://www.kens5.com/article/news/health/coronavirus/border-patrol-agent-remembered-who-died-from-coronavirus/273-d15ebe92-3be1-49c1-b5c3-0a314e5ba76f.
159 @taylorklevy, Twitter (Jan. 12, 2021), https://twitter.com/taylorklevy/status/1349083632468701187; Patrick Svitek, Gov. Greg Abbott Orders Texans in Most Counties to Wear Masks in Public, Tex. Trib. (July 2, 2020), www.texastribune.org/2020/07/02/texas-mask-order-greg-abbott-coronavirus; See FAQs for Law Enforcement Agencies and Personnel, Ctrs. for Disease Control & Prevention (Dec. 3, 2020), www.cdc.gov/coronavirus/2019-ncov/community/law-enforcement-agencies-faq.html.
160 Leaños, supra note 32.
161 This note does not discuss all the laws Title 42 violates in depth. Title 42 expulsions also likely violate the Trafficking Victims Protection Reauthorization Act of 2008, the Administrative Procedure Act and further constitutional law claims. See Azadeh Erfani, The Latest Brick in the Wall: How the Trump Administration Unlawfully ‘Expels’ Asylum Seekers & Unaccompanied Children in the Name of Public Health, Nat’l Immigrant Just. Ctr. (Apr. 15, 2020), https://immigrantjustice.org/staff/blog/latest-brick-wall-how-trump-administration-unlawfully-expels-asylum-seekers, for further reading on how the use of Title 42 to expel asylum seekers is violative of the Trafficking Victims Protection Reauthorization Act (TVPRA). See Complaint for Declaratory and Injunctive Relief at 32–33, Poe v. Mayorkas, 1:2021-cv-10218 (D. Mass. filed Feb. 8, 2021), ECF No. 1, for further reading on how the use of Title 42 to expel asylum seekers is violative of the Administrative Procedure Act Protection (APA). See Guttentag, supra note 3, for further reading on how the current use of the PHSA to expel asylum seekers is being wrongfully implemented.
162 Brief for the Petitioners at 2, Mayorkas v. Innovation Law Lab, No. 19-1212, 2021 WL 2520313 (U.S. June 21, 2021), 2020 WL 7345489.
163 Immigration Law (U.S.) Research Guide, Geo. L. Libr. (June 3, 2021), https://guides.ll.georgetown.edu/c.php?g=273371&p=1824780; Immigration and Nationality Act (“INA”), Nat’l Paralegal Coll., https://nationalparalegal.edu/public_documents/courseware_asp_files/DomRelImmig/IntroToImmig/INA.asp (last visited Sept. 1, 2021).
164 Id.
165 See Immigration Law (U.S.) Research Guide, supra note 163; Immigration and Nationality Act (“INA”), supra note 163.
166 8 U.S.C. § 1101(a)(42).
167 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, § 601(a), 110 Stat. 3009 (codified as amended at 8 U.S.C. § 1101(a)(42)).
168 8 U.S.C. § 1158(a)(1).
169 Id.
170 8 U.S.C. § 1231(b)(3)(A).
171 932 F.3d 742, 774 (9th Cir. 2018); Guttentag, supra note 3. The Interim Final Rule, also known as “the asylum ban,” was a presidential proclamation by President Trump which barred asylum for individuals who entered the U.S. across the southern border outside a POE. East Bay Sanctuary Covenant v. Trump (Amicus), Nat'l Ctr. for Lesbian Rts., https://www.nclrights.org/our-work/cases/east-bay-sanctuary-covenant-v-trump/ (last visited Feb. 17, 2021).
172 Guttentag, supra note 3.
173 Molly O’Toole, Biden Promised Change at the Border. He’s Kept Trump’s Title 42 Policy to Close It and Cut Off Asylum, LA Times (Mar. 19, 2021), https://www.latimes.com/politics/story/2021-03-19/a-year-of-title-42-both-trump-and-biden-have-kept-the-border-closed-and-cut-off-asylum-access.
174 Id.
175 Guttentag, supra note 3. Rebecca Morin, CDC Extends Trump-Era Policy that Allows Migrants to Be Expelled Over COVID Concerns, Silver City Sun News (Aug. 2, 2021) (updated Aug. 3, 2021), https://www.scsun-news.com/story/news/politics/2021/08/02/cdc-extends-title-42-policy-allowing-migrant-expulsion-covid-fears/5462849001/; see also Marcia Brown, Deportation As Usual As Biden Struggles to Reshape Immigration Policy, Am. Prospect (Feb. 18, 2021), https://prospect.org/justice/deportation-as-usual-biden-struggles-to-reshape-immigration-policy/.
176 See Hans Danelius, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Introductory Note, Audiovisual Libr. Int’l L. (June 2008), https://legal.un.org/avl/ha/catcidtp/catcidtp.html.
177 Id.
178 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, pt. I, art. 1, Dec. 10, 1984, 1465 U.N.T.S. 85.
179 Michael John Garcia, Cong. Rsch. Serv., RL32276, The U.N. Convention Against Torture: Overview of U.S. Implementation Policy Concerning the Removal of Aliens 3 (2009).
180 FAQ: The Convention Against Torture, ACLU, https://www.aclu.org/other/faq-convention-against-torture (last visited Aug. 8, 2021).
181 Garcia, supra note 179, at 7.
182 Nuru v. Gonzales, 404 F.3d 1207, 1216 (9th Cir. 2005); E. Bay Sanctuary Covenant v. Trump, 349 F. Supp. 3d 838, 845–46 (N.D. Cal. 2018), aff'd, 950 F.3d 1242 (9th Cir. 2020), and aff’d sub nom. E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640 (9th Cir. 2021).
183 Lind & Kriel, supra note 88.
184 Id.; Arelis R. Hernández & Nick Miroff, Facing Coronavirus Pandemic, Trump Suspends Immigration Laws and Showcases Vision for Locked-Down Border, Wash. Post (Apr. 3, 2020), https://www.washingtonpost.com/national/coronavirus-trump-immigration-border/2020/04/03/23cb025a-74f9-11ea-ae50-7148009252e3_story.html.
185 Q&A: US Title 42 Policy to Expel Migrants at the Border, supra note 141.
186 Montoya-Galvez, supra note 64.
187 DHS Releases End of Year Fiscal Year 2016 Statistics, U.S. Dep’t Homeland Sec. (Dec. 30, 2016), https://www.dhs.gov/news/2016/12/30/dhs-releases-end-year-fiscal-year-2016-statistics#; FY 2016 Statistics Yearbook, U.S. Dep’t Just. 45 (Mar. 2017), https://www.justice.gov/eoir/page/file/fysb16/download.
188 See id.; Montoya-Galvez, supra note 64.
189 Amelia Cheatham, Central America’s Turbulent Northern Triangle, Council on Foreign Rels. (July 1, 2021), https://www.cfr.org/backgrounder/central-americas-turbulent-northern-triangle.
190 Paul J. Angelo, Why Central American Migrants Are Arriving at the U.S. Border, Council on Foreign Rels. (Mar. 22, 2021), https://www.cfr.org/in-brief/why-central-american-migrants-are-arriving-us-border; Phillips & Ricker, supra note 132, at 31; Stef W. Kight & Russell Contreras, Why Migrants Are Fleeing Their Homes for the U.S., Axios (Mar. 7, 2021), https://www.axios.com/migrant-surge-border-crossings-reasons-dd0c6171-df76-43a6-a12f-78eaa4df73d0.html; Central African Republic: 200,000 Displaced in Less than Two Months, UN News (Jan. 29, 2021), https://news.un.org/en/story/2021/01/1083332; Kira Olsen-Medina & Jeanne Batalova, Haitian Immigrants in the United States, Migration Pol’y Inst. (Aug. 12, 2020), https://www.migrationpolicy.org/article/haitian-immigrants-united-states-2018; Oriana Van Praag, Understanding the Venezuelan Refugee Crisis, Wilson Ctr. (Sept. 13, 2019), https://www.wilsoncenter.org/article/understanding-the-venezuelan-refugee-crisis.
191 See Q&A: US Title 42 Policy to Expel Migrants at the Border, supra note 141; O’Toole, supra note 173.
192 See Q&A: US Title 42 Policy to Expel Migrants at the Border, supra note 141.
193 Phillips & Ricker, supra note 132, at 31.
194 Id. at 31–32.
195 Id. at 32.
196 Id. at 31–32.
197 Phillips & Ricker, supra note 132, at 39–40; Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1079 (9th Cir. 2015); cf. Lopez-Galarza v. Immigr. & Naturalization Serv., 99 F.3d 954, 959 (9th Cir. 1996) (listing both rape and sexual assault as forms of persecution for asylum purposes).
198 Failure to Protect: Biden Administration Continues Illegal Trump Policy to Block and Expel Asylum Seekers to Danger, Hum. Rts. First (Apr. 20, 2021), https://www.humanrightsfirst.org/resource/failure-protect-biden-administration-continues-illegal-trump-policy-block-and-expel-asylum.
199 New Report Finds Continued Use of Illegal Trump Border Policy Endangers Asylum Seekers, Hum. Rts. First (Apr. 20, 2021), https://www.humanrightsfirst.org/press-release/new-report-finds-continued-use-illegal-trump-border-policy-endangers-asylum-seekers.
200 See Katie Benner & Charlie Savage, Due Process for Undocumented Immigrants, Explained, N.Y. Times (June 25, 2018), https://www.nytimes.com/2018/06/25/us/politics/due-process-undocumented-immigrants.html; Gretchen Frazee, What Constitutional Rights Do Undocumented Immigrants Have?, PBS News Hour (June 25, 2018), https://www.pbs.org/newshour/politics/what-constitutional-rights-do-undocumented-immigrants-have; Kendall Coffey, The Due Process Right to Seek Asylum in the United States: The Immigration Dilemma and Constitutional Controversy, 22 Immigr. & Nat’y L. Rev. 255, 257–58 (2001).
201 Ms. L. v. U.S. Immigr. & Customs Enf't, 302 F. Supp. 3d 1149, 1161 (S.D. Cal. 2018) (quoting Brief for Scholars of Immigr. and Const. Law as Amici Curiae Supporting Petitioners at 3, 302 F. Supp. 3d 1149 (No. 3:18-cv-00428), ECF No. 23-1.
202 8 U.S.C. § 1225(b)(1)(A)(ii); Id. § 1225(b)(1)(B)(ii).
203 Id.
204 Phillips & Ricker, supra note 132, at 8, 26.
205 See U.S. Const. amend. XIV, § 1.
206 Yick v. Hopkins, 118 U.S. 356, 369 (1886); Zadvydas v. Davis, 533 U.S. 678, 693 (2001).
207 Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206, 212 (1953); Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1983 (2020).
208 Id. at 1967, 1981.
209 Id. at 1967–68.
210 Id. at 1982.
211 Id. (quoting Ekiu v. United States, 142 U.S. 651, 660 (1892)).
212 Id. at 1983.
213 See supra Section III.A.
214 See Thuraissigiam, 140 S. Ct. at 1983.
215 Q&A: US Title 42 Policy to Expel Migrants at the Border, supra note 141.
216 No. 20-cv-00846, 2020 WL 5107548, at *1 (D.D.C. Aug. 31, 2020).
217 Id. at *6–8.
218 See Guttentag, supra note 3.
219 426 U.S., 88, 90–91 (1976).
220 Id. at 116–17.
221 U.S. Dep't of Health & Hum. Servs., Ctrs. for Disease Control & Prevention (CDC), supra note 13.
222 See id.
223 See id.; Hampton, 426 U.S. at 116.
224 Hampton, 426 U.S. at 116.
225 See Our History – Our Story, Ctrs. for Disease Control & Prevention, www.cdc.gov/about/history/index.html (Dec. 4, 2018) (explaining that the CDC is an operation of the Health and Human Services agency, a government agency that focuses on “health promotion, prevention, and preparedness.”). “An agency’s powers are granted by Congress in an ‘enabling act’ . . . and in other specific legislative grants of power. . .. An agency’s power to promulgate legislative regulations is limited to the authority delegated by Congress.” Administrative Law: Federal Agencies, Fla. State U. Coll. L. Rsch. Ctr. (Apr. 6, 2021), https://guides.law.fsu.edu/administrativelaw/agencies. Thus, among the hierarchy of U.S. government power, the CDC’s power stems from Congress.
226 U.S. Const. art. I, § 8; Artl.S8.C18.4.2 Implied Power of Congress Over Immigration, Const. Annotated, https://constitution.congress.gov/browse/article-1/#I_S8_C18 (last visited July 9, 2021).
227 See Public Health and Welfare Act, 42 U.S.C. §§ 265, 268.
228 952 F.3d 999, 999 (9th Cir. 2020).
229 Id. at 1015; E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 779 (9th Cir. 2018) (quoting Maryland v. King, 567 U.S. 1301, 1301 (2012) (Roberts, C.J., in chambers)).
230 See Gerda Kleijkamp, Comparing the Application and Interpretation of the United States Constitution and the European Convention on Human Rights, 12 Transnat'l L. & Contemp. Probs. 307, 310 (2002).
231 See Guttentag, supra note 3. But see Trump v. Hawaii, 138 S. Ct. 2392 (2018) (holding that President Trump fulfilled the INA provision that delegates authority to the President to regulate immigration if such lack of regulation would be detrimental to the interests and security of the U.S.).
232 See Cat Cardenas, Asylum Seekers in Matamoros Celebrated Joe Biden’s Victory. But the Final Weeks of the Trump Administration Are Bringing Fresh Anxiety., Tex. Monthly (Dec. 14, 2020), https://www.texasmonthly.com/news-politics/matamoros-asylum-seekers-biden-victory/.
233 See id.; Migrant Protection Protocols, supra note 11 (“Migrant Protection Protocols are a U.S. Government action whereby certain foreign individuals entering or seeking admission to the U.S. from Mexico – illegally or without proper documentation – may be returned to Mexico and wait outside of the U.S. for the duration of their immigration proceedings . . . .). On August 24, 2021, the Supreme Court declined the Biden Administration’s application for a stay of the injunction issued by the district court, noting that “[t]he applicants have failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious.” Joseph R. Biden, Jr., President of the United States, et al., Applicants v. Texas, et al., Supreme Court of the U.S. (Aug. 24, 2021), https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/21a21.html. Consequently, the Administration must resume the Remain in Mexico policy. See id. The Biden Administration plans to reinstate the Remain in Mexico policy by mid-November 2021, so long as Mexico agrees. Hannah Albarazi, Biden Admin. Says ‘Remain In Mexico’ May Restart Next Month, LAW360 (Oct. 15, 2021), https://www.law360.com/articles/1431455/biden-admin-says-remain-in-mexico-may-restart-next-month. Immigrant Rights advocates call the Biden Administration’s decision to reinstate the Remain in Mexico policy in November rather than terminate the program a “betrayal” that will cause “immense human suffering.” Press Release, American Immigr. Council, The Reimplementation of MPP is Betrayal of President Biden’s Campaign Promises (Oct. 15, 2021), https://www.americanimmigrationcouncil.org/news/reimplementation-mpp-betrayal-president-biden%E2%80%99s-campaign-promises?fbclid=IwAR0KE5b-XZzOqDkOs5JNSC-qqy6XDt1pss_nT-0I_-pp_mq_qb0nrbA8cjg; US Plans to Reinstate Trump-era ‘Remain in Mexico’ Asylum Policy, Al Jazeera (Oct. 15, 2021), https://www.aljazeera.com/news/2021/10/15/us-plans-to-reinstate-trump-era-remain-in-mexico-asylum-policy.
234 Proclamation No. 10141, 86 Fed. Reg. 7,005 (Jan. 25, 2021); Ted Hesson & Mimi Dwyer, Biden to Bring in Asylum Seekers Forced to Wait in Mexico Under Trump Program, Reuters (Feb. 12, 2021), https://www.reuters.com/article/us-usa-biden-immigration-asylum/biden-to-bring-in-asylum-seekers-forced-to-wait-in-mexico-under-trump-program-idUSKBN2AC113; Jacob Soboroff et al., Biden Administration Will Let Migrant Families Separated Under Trump Reunite Inside U.S., NBC News (Mar. 1, 2021, 12:00 PM) (updated 1:19 PM), https://www.nbcnews.com/politics/immigration/biden-admin-expected-let-migrant-families-separated-under-trump-reunite-n1259141; Office of the Spokesperson, Restarting the Central American Minors Program, U.S. Dep’t State (Mar. 10, 2021), www.state.gov/restarting-the-central-american-minors-program/; Arelis R. Hernández, Fewer Migrant Families Being Expelled at Border Under Title 42, But Critics Still Push for Its End, Wash. Post (June 13, 2021, 6:11 PM) (updated 6:46 PM), https://www.washingtonpost.com/immigration/fewer-migrant-families-being-expelled-at-border-under-title-42-but-critics-still-push-for-its-end/2021/06/13/422c702c-c7cc-11eb-81b1-34796c7393af_story.html.
235 Security Bars and Processing; Delay of Effective Date, 86 Fed. Reg. 15,069, 15,070 (Mar. 22, 2021) (to be codified at 8 C.F.R. pts. 208, 1208); see also Security Bars and Processing, 85 Fed. Reg. 84,160, 84,160 (Dec. 23, 2020) (to be codified at 8 C.F.R. pts. 208, 1208).
236 Security Bars and Processing; Delay of Effective Date, 86 Fed. Reg. at 15,070.
237 Maureen Meyer & Adam Isacson, High Levels of Migration Are Back. This Time, Let’s Respond Without a Crackdown, WOLA (Aug. 5, 2021), https://www.wola.org/analysis/high-levels-of-migration-are-back-this-time-respond-without-a-crackdown/; see also Hernández, supra note 234.
238 Ryan Devereaux, New Report Documents Nearly 500 Cases of Violence Against Asylum-Seekers Expelled by Biden, Intercept (Apr. 21, 2021), https://theintercept.com/2021/04/21/asylum-seekers-violence-biden-title-42/?fbclid=IwAR0YRT4xcMfVSkz12b_9ApD8VDDTw4zpPPaH7XTDDxvLEeXmlPoviHwJF70.
239 Karolina Walters, Discriminatory Treatment of Haitians Throughout History Informs Current Policy at the US-Mexico Border, Immigr. Impact (Nov. 19, 2020), https://immigrationimpact.com/2020/11/19/haitian-immigrants-asylum-border/#.YIwuMehKiUk.
240 Julian Borger, Haiti Deportations Soar as Biden Administration Deploys Trump-Era Health Order, Guardian (Mar. 25, 2021), https://www.theguardian.com/us-news/2021/mar/25/haiti-deportations-soar-as-biden-administration-deploys-trump-era-health-order.
241 Nick Miroff et al., Biden Will Send Mexico Surplus Vaccine, as U.S. Seeks Help on Immigration Enforcement, Wash. Post (Mar. 18, 2021), https://www.washingtonpost.com/national-security/biden-mexico-immigration-coronavirus-vaccine/2021/03/18/a63a3426-8791-11eb-8a67-f314e5fcf88d_story.html.
242 Title 42 Challenges, Ctr. for Gender & Refugee Stud., https://cgrs.uchastings.edu/our-work/title-42-challenges (last visited July 9, 2021).
243 No. 20-2245 (D.D.C. Nov. 18, 2020); Press Release, ACLU, District Court Blocks Trump Administration’s Illegal Border Expulsions (Nov. 18, 2020), https://www.aclu.org/press-releases/district-court-blocks-trump-administrations-illegal-border-expulsions.
244 P.J.E.S. v. Pekoske, No. 20-5357 (D.C. Cir. Jan. 29, 2021) (order granting motion for stay); Press Release, U.S. Dep’t of Homeland Sec., Statement by Homeland Security Secretary Alejandro N. Mayorkas Regarding the Situation at the Southwest Border (Mar. 16, 2021), www.dhs.gov/news/2021/03/16/statement-homeland-security-secretary-alejandro-n-mayorkas-regarding-situation.
245 No. 21-cv-00100 (D.D.C. filed Jan. 12, 2021); Title 42 Challenges, supra note 242.
246 Id.
247 See Wendy E. Parmet, Reversing Immigration Law’s Adverse Impact on Health, in 2 COVID-19 Policy Playbook: Legal Recommendations for a Safer, More Equitable Future 217 (2021), https://static1.squarespace.com/static/5956e16e6b8f5b8c45f1c216/t/60995942ea2dbf3f3bc31788/1620662599928/COVIDPolicyPlaybook-v2_May2021.pdf.
248 See id.; Caitlin Yoshiko Kandil, Asian Americans Report Over 650 Racist Acts Over Last Week, New Data Says, NBC News (Mar. 26, 2020), https://www.nbcnews.com/news/asian-america/asian-americans-report-nearly-500-racist-acts-over-last-week-n1169821. Professor Erika Lee, at the University of Minnesota states: “It’s a trope that dates back to the 1800s. During an outbreak of the bubonic plague in San Francisco in 1900, [Lee] said, Chinatown was blocked off and its residents were barred from leaving after the first case was traced to a Chinese immigrant living there. An outbreak of the plague similarly led to the quarantine of Chinatown in Honolulu.” Yoshiko Kandil, supra (quoting Erika Lee, Professor at the University of Minnesota).
249 See Q&A: US Title 42 Policy to Expel Migrants at the Border, supra note 141; O’Toole, supra note 173; Russell, supra note 141.
250 Jihan Abdalla, Rights Groups Decry ‘Flawed’ US Asylum Exemptions Process, Al Jazeera (June 17, 2021), https://www.aljazeera.com/news/2021/6/17/rights-groups-decry-flawed-us-asylum-exemptions-process; see also Julia Neusner, “They Lied to Us": Biden Administration Continues to Expel, Mistreat Families Seeking Asylum, Hum. Rts. First (May 13, 2021), humanrightsfirst.org/blog/they-lied-us-biden-administration-continues-expel-mistreat-families-seeking-asylum; Arelis R. Hernández, DHS Secretary Mayorkas Visits Border to Tout Progress in Processing Migrant Children, Wash. Post (May 7, 2021), https://www.washingtonpost.com/immigration/dhs-secretary-mayorkas-visits-border-to-tout-progress-in-processing-migrant-children/2021/05/07/c75181a0-af64-11eb-acd3-24b44a57093a_story.html.
251 Angela Kocherga, Rejected by 1 Mexican Port of Entry, Migrants Are Flown by U.S. to Another, NPR (Mar. 26, 2021), https://www.npr.org/2021/03/26/981190646/rejected-by-1-mexican-port-of-entry-migrants-are-flown-by-u-s-to-another.
252 See Mika Gröndahl et al., How Safe Are You from Covid When You Fly?, N.Y. Times (Apr. 17, 2021), https://www.nytimes.com/interactive/2021/04/17/travel/flying-plane-covid-19-safety.html.
253 Abdalla, supra note 250.
254 Id.
255 Id.
256 Id.
257 Id.
258 Id.
259 Press Release, Ctrs. for Disease Control & Prevention, CDC Extends Order at the Southern and Northern Land Borders (Aug. 2, 2021), https://www.cdc.gov/media/releases/2021/s080221-southern-northen-land-borders-order-extended.html. The Biden administration intends to ease COVID-19 restrictions for nonessential travelers at its land borders with Canada and Mexico in the beginning of November 2021. Update on U.S. Travel Policy Requiring COVID-19 Vaccination, U.S. Dep’t of State – Bureau of Consular Affs. (Oct. 15, 2021), https://travel.state.gov/content/travel/en/News/visas-news/update-on-us-travel-policy-requiring-covid-19-vaccination.html; David Shepardson & Steve Holland, U.S. to Lift Canada, Mexico Land Border Restrictions in Nov for Vaccinated Visitors, Reuters (Oct. 3, 2021), https://www.reuters.com/world/us/us-open-border-with-canada-starting-early-november-buffalo-news-2021-10-13/?fbclid=IwAR3QTEPv2vVf5VRdfpsnL-ibeW8uuz5S61gAc0hEbv3IxUQAceldQBTGC9Q; Ken Thomas & Michelle Hackman, Biden Administration to Ease Covid-19 Travel Restrictions at Canada and Mexico Land-Border Crossings, Wall St. J. (Oct. 13, 2021), https://www.wsj.com/articles/biden-administration-to-ease-covid-19-travel-restrictions-at-canada-and-mexico-land-border-crossings-11634095283. Non-United States nationals must be vaccinated and will be required to show proof of vaccination in order to enter. Update on U.S. Travel Policy Requiring COVID-19 Vaccination, supra; Shepardson & Holland, supra; Paul Vieira & Kim Mackrael, Canada-U.S. Border: Everything You Need to Know About Reopening Travel, Wall St. J. (Oct. 15, 2021), https://www.wsj.com/articles/canada-u-s-border-open-11628539364; Thomas & Hackman, supra. The amended restrictions will not impact covered undocumented persons affected by Title 42. Shepardson & Holland, supra; Thomas & Hackman, supra; Press Briefing by Press Secretary Jen Psaki, October 13, 2021, White House (Oct. 13, 2021), https://www.whitehouse.gov/briefing-room/press-briefings/2021/10/13/press-briefing-by-press-secretary-jen-psaki-october-13-2021/. The Biden administration has provided no information as of the writing of this note regarding whether asylum seekers will continue to be prohibited from requesting asylum at legal ports of entry.
260 Elliot Spagat & Julie Watson, Advocates End Work with US to Pick Asylum-Seekers in Mexico, AP News (July 30, 2021), https://apnews.com/article/health-mexico-immigration-coronavirus-pandemic-b503c2f87e4c7582c97d3383a3f03b20.
261 Meyer & Isacson, supra note 237.
262 Telephone Interview with Linda Rivas, supra note 12.
263 Borger, supra note 240; Abdalla, supra note 250.
264 Proclamation No. 10141, supra note 234.
265 Become a Ready Reserve Officer in the U.S. Public Health Service, Commissioned Corps U.S. Pub. Health Serv., https://www.usphs.gov/ready-reserve (last visited Aug. 11, 2021) (“The Ready Reserve Corps is a part of an elite group of Commissioned Corps’ ‘America’s Health Responders’ who promote, protect and advance the health and safety of the Nation.”).
266 Approximately ninety percent of asylum seekers have family or close friends within the U.S. Tom K. Wong, Seeking Asylum: Part 2, US Immigr. Pol’y Ctr. (Oct. 29, 2019), usipc.ucsd.edu/publications/usipc-seeking-asylum-part-2-final.pdf.
267 Stephen H. Waterman et al., A New Paradigm for Quarantine and Public Health Activities at Land Borders: Opportunities and Challenges, 124 Pub. Health Reps. 203 (2009), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2646476/pdf/phr124000203.pdf.
268 Julian Resendiz, Scholars Urge Biden to Stop Title 42 Expulsions and Mexico to End Arrest of Migrants, Border Rep. (Apr. 19, 2021), www.borderreport.com/hot-topics/immigration/scholars-urge-biden-to-stop-title-42-expulsions-and-mexico-to-end-arrest-of-migrants/.