On March 21, the Trump Administration began to implement a Centers for Disease Control and Prevention (CDC) emergency order based on Title 42 of the US Code, which excludes “any person or thing that might introduce a disease” into the US and bars “the entry of anyone [...] without papers.” Title 42 has existed since the 1890s and was used to prevent boats from docking in US ports if they had originated from places with smallpox, cholera and other infectious diseases. The US has argued that the use of Title 42 is a form not of deportation, but rather of expulsion, which justifies the removal of people without certain protections, particularly children. While the US government argues that Title 42 is a) meant to protect the health of the general public (including migrants’ health) and b) not a form of deportation, but technically of expulsion, in practice the CDC order has functioned as deportation and has risked the health of migrants in the process.
Title 42 expulsions at the US-Mexico border have increased since its implementation, have represented the majority of removals from the US and have outnumbered Title 8 apprehensions (those based in immigration law). Between April and September 2020, US Customs and Border Protection reported 209,201 “enforcement encounters” at the border with Mexico, from which 189,962 (90.8%) resulted in expulsion through Title 42, in comparison to the 19,239 (9.2%) apprehensions under Title 8. In March, expulsions under Title 42 numbered 7,079 and increased to 48,327 in September, an increase of 582%.
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When unaccompanied minors are detained under immigration law, the US government is required to place them into the custody of the Office of Refugee Resettlement in the US Department of Health and Human Services (HHS). Thereafter, they are placed with a sponsor (often a relative) until their hearing. Under Title 42, unaccompanied minors as young as 1-year-olds are being expelled under public health law. Thus, they are not being placed with HHS and are denied legal due process. According to ProPublica, to implement the CDC order on children, “the administration has developed an ad hoc system in which children are held for days in hotels, with little contact with the outside world —making it almost impossible for lawyers or advocates to locate them—, before being returned to the countries from which they fled.” Alarmingly, a private security company, MVM, Inc., contracted to transport migrant children during detention, have now been used to take care of children in hotels before they are expelled. Parents have no way of locating them. Children in these hotels lack legal protection against abuse, and there is virtually no way to monitor their well-being. They are vulnerable to neglect and verbal, physical and sexual abuse, as well as violence, torture and other human rights abuses.
Trump has argued that Title 42 is meant to protect public health by expelling migrant children who may have covid-19, but this is a false argument, given that children are tested before being deported. Those who test positive stay in the US, and those who test negative are deported. If children are healthy and free from the virus, why are they not allowed to seek asylum or allowed to stay in the US? The US is purposely using Title 42 to deport migrants without legal due process and is knowingly and actively violating their human rights
In the next column, I will examine the inhumane practices of immigration detention centers during the pandemic.
* Read it also in Spanish.
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