The Centers for Disease Control and Prevention has come under fire in past weeks over fumbles in its response to the Omicron surge. As the organization’s leadership works to dig itself out from this blow to its reputation, it must rectify another issue that’s been threatening its legitimacy for almost two years: CDC orders that have justified the baseless expulsions of asylum seekers at the U.S.-Mexico border.
In March 2020, the CDC issued an order invoking two rarely used sections — 265 and 268 — of Title 42 of the U.S. Code of Federal Regulations, which was established in 1944 by the Public Health Service Act. Title 42 grants the government powers to take emergency action to halt the introduction of communicable disease. It’s meant to be used for localized outbreaks, not global pandemics.
But once Covid-19 spread to the Americas, the Trump administration saw an opportunity. Always looking for mechanisms to promote its anti-immigrant agenda, it pressured the CDC into issuing the Title 42 order, thus empowering immigration officials to send migrants at the border back into Mexico or to their countries of origin without even hearing their asylum claims, which was in direct violation of international asylum law.
Public health experts across the U.S., including Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, have attested that there is no public health rationale for the order, and have provided detailed recommendations on how to restore asylum processing while upholding public health.
Nevertheless, the CDC, now backed by the Biden administration, continues to peddle the public health necessity of blocking asylum seekers. In December, CDC director Rochelle Walensky renewed the Title 42 order under much scrutiny by human rights and public health experts. The Department of Homeland Security continues to use the CDC’s order as a crutch to justify ongoing expulsions and deportations of migrants fleeing their countries for their lives.
As physicians who care for migrants in the U.S. and at the border, we’re not buying it. We’ve seen how airports do not employ the Title 42 order — it’s only applied at land borders — and how hundreds of thousands of documented people and vehicles cross into the U.S. from Mexico every day without so much as a Covid test. Given that the number of migrants crossing the U.S.-Canada border is a tiny fraction of the number crossing the U.S.-Mexico border, the Title 42 order clearly was meant to target migrants entering the U.S. from Mexico. After bars to nonessential travel were lifted for vaccinated visa holders in November 2021, vaccinated asylum seekers were still being expelled. The hypocrisy and racism inherent in the selective expulsions of Black and brown asylum seekers are evident.
The consequences are appalling. Last fall, Customs and Border Patrol agents on horseback brutally rounded up a group of Haitian migrants in Del Rio, Texas, recalling images of the brutalization of enslaved people by patrols in a not-so-distant past. In our clinics, we’ve heard first-hand accounts of patients and their family members being raped and brutalized — re-exposed to the very violence they were fleeing — after being unable to request protection in the U.S. under asylum law.
This type of treatment can never be a “public health necessity.” On the contrary, by renewing the Title 42 order, the CDC is complicit in the erosion of trust among the American people, further threatening public health rather than protecting it. Lack of trust in public institutions is a major reason why U.S. Covid-19 infection and death rates are soaring compared to other developed countries’ rates. When people in the U.S., in particular people of color, see migrants who look like them being turned away at the border without being given a chance to state why they fled their homes, and realize the CDC is complicit, the trust that is already faltering from pandemic-era blunders and the inequitable impact of Covid-19 further deteriorates.
Public health, not politics, should inform every aspect of the CDC’s work. Restoring the agency’s credibility among Americans requires an end to the Title 42 order. To honor its declared commitment to combat racism as a public health threat, the CDC must also reckon with the racially disproportionate and harsh impact this order has had, particularly on migrants of color.
To be sure, the CDC has taken steps to mitigate the harmful impacts of the Title 42 order. Last spring, Walensky announced an exception for unaccompanied children. And the Department of Homeland Security has resumed processing some asylum seekers through the pre-pandemic Title 8 system. Yet more than 75,000 asylum seekers were still expelled under Title 42 in December 2021 alone. The nation’s public health agency must do better to live up to its pledge to base its decisions on objective public health data and treat everyone with dignity.
The U.S. government has proven it can make changes to asylum processing when there is political will. Mitigation is not enough. The CDC must eliminate the Title 42 order entirely and implement recommendations already proposed by public health experts for restoring safe and healthy asylum processing for all at the border.
As Covid-19 continues to ravage communities across the U.S., especially communities of Black, Indigenous, and other people of color (BIPOC), it is essential that the CDC work proactively to establish and maintain trust, connection, and accountability with BIPOC communities, and the American people as a whole. Continuing to back policies like the Title 42 order sets up the CDC for further erosion of that trust.
For the lives on the line at the border, and for the lives of all Americans who rely on the CDC to help survive this pandemic, it is imperative that the agency take moral and scientific leadership to end the Title 42 order.
Juliana Morris is a primary care doctor in Chelsea, Mass., and a regular volunteer with medical outreach teams at the U.S.-Mexico border. Stephanie Sun is an internal medicine physician and fellowship director of the Massachusetts General Hospital Fellowship Program in Rural Health Leadership. Rashmi Jasrasaria is a primary care doctor in Chelsea, Mass., and associate director of the MGH Center for Immigrant Health.
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