REUTERS/Jose Luis Gonzalez
- The Biden administration has extended a Trump-era policy that effectively closes the border.
- Title 42, issued by the CDC, limits the right to seek asylum, with exceptions for children.
- Public health and legal experts have challenged the order. The ACLU is suing.
- See more stories on Insider's business page.
President Joe Biden took office pledging to reverse the last administration's xenophobic approach to the border. One of his first acts was allowing unaccompanied children to once again seek asylum within the United States.
But the administration has not extended that privilege – that internationally recognized legal right – to single adults or families, allowing the latter in only when unable to expel them to Mexico. Citing the Delta variant, the US Centers for Disease Control and Prevention said it was sticking with that policy, known as Title 42, for the time being.
Jacqueline Bhabha is a scientist and professor at the Harvard T.H. Chan School of Public Health, where she lectures on the practice of health and human rights. She is also an expert on the issue of migration and refugee protection.
Bhabha spoke to Insider to offer her analysis of Title 42 and the Biden administration's handling of COVID-19 at the border.
When Title 42 was pushed by the Trump administration, it was seen by many as an immigration restriction, first, with a health justification. And so many people are surprised to see that the Biden administration has extended it with the same rationale. What do you make of that, as a public health expert. Because there are migrants that have COVID and there are a lot of politicians around the border who are, I think, grandstanding about positive migrant cases contributing to the current spike. Is this a matter of politics or public health?
Everybody realizes that the public health risks related to the pandemic are serious. But they're no more serious for migrants than they are for others. And international law is very clear that any public health measure that's taken - to prevent somebody from seeking asylum, which is what we're talking about here - has to be reasonable and proportionate. Reasonable means that you have to show that you've taken due consideration of the specific health risk, and proportionate means that you have to show that the health risks outweigh other risks that the person might be facing. So you have to do a kind of balancing act. If there was nothing at stake - if somebody was just coming for a holiday, if somebody's just coming, you know, cause they wanted to go to Disneyland - then you might well argue there's no point in incurring any health risk because it's not a very significant purpose that the person's wanting to cross the border for.
But if somebody is fleeing from gangs or somebody is fleeing from violence or somebody is fleeing because they feel there is a threat to their life, then you have to measure very carefully the balance between the public health risk and the other stakes at issue. And you can of course take all sorts of measures to mitigate public health risks. I don't think anybody is suggesting that people shouldn't be tested; that people should be required to wear masks; that people shouldn't be placed in contexts where they could socially distance. All these are perfectly legitimate measures, which we impose on the domestic population, where appropriate.
What is not appropriate is to have a blanket ban that really discriminates against a particularly vulnerable population. In the case of the border, and the extension of the CDC kind of ban, to people trying to obtain asylum in the US, I think the legitimate argument is that the measures that continue to be taken by the Biden administration are not proportionate - they're not reasonable.
It's great that unaccompanied minors are no longer being turned back, as they were under the previous administration, but it's unacceptable that families could be separated - that people are still being sent back to situations where they're really at risk. We know the other side of the US-Mexico border. It's a very dangerous area. There's no dispute about that. The administration doesn't challenge that. I think for those reasons people are really shocked and very disappointed that the administration has continued with this decision. And I think there is a suspicion that it's politically driven rather than health-driven - that because of the criticism from the Republican Party and others on the right about mismanagement of the border, numbers of people entering, that the Biden administration made a kind calculation that this is some way of appeasing that constituency.
I think that's regrettable. I think that's unjust. And I think there is really no public health justification for this approach.
What do you make of the Biden administration's handling of COVID at the border? Is there anything to the Republican criticisms? For example, we're seeing Catholic Charities in the Rio Grande Valley bear the burden of testing all the migrants and finding them quarantine space in local hotels. It seems like the federal government is passing the problem on to these NGOs.
I think that there certainly is dramatic underfunding of federal resources to manage the border. And this is a historic problem, which was aggravated in the previous administration. There's a long legacy of underfunding; of far too few asylum officers; inadequate funding of facilities; inadequate funding for shelter. That's not easy to correct overnight. I personally think that much more funding should be made available as a massive urgency, given the human rights obligations that the US has and much of the underlying responsibility for the untenable situation in many of the Central American countries.
I think there's a huge responsibility to invest more deeply and more vigorously in adequate resources - training, and having officials there so that people don't have to wait so long to get an interview, so that places aren't overcrowded, so kids aren't left with very little stimulation, no schooling, in these shelters.
The US, as a wealthy country, is doing an extremely poor job. We wouldn't tolerate these levels of delays if it was to do with our tax returns or processing business permit applications. This is a federal obligation. I do understand that, given the last four years and actually even before, there's a whole problem here of an agency that's been decimated that needs to be shored up. I think it is disappointing. I think that for sure Catholic Charities and other NGOs are having to step up to the plate, as they always have. This needs to be radically addressed. People are waiting to see substantial investments.
I think it's fine to talk about root causes, as Kamala Harris and others have done, and taking steps to increase safety and security as much as possible in Central America - to increase access to employment, to increase schooling and healthcare and all that sort of social infrastructure. Of course, that's going to contribute, but these are not things that change overnight. And in the meantime, I think that the kind of bare-bones approach to processing really serious cases, which have human rights implications, it's regrettable. So, yes, I think that the Biden administration has not done enough. I think it's hard to correct this immediately. And I think - I hope - going forward that some of the more inspiring terms that were made during the campaign about reversing course on immigration, having a more rights-based approach - I hope those claims really bear fruit down the light. But I think we're seeing a kind of tussle, already, within this administration between different constituencies with different agendas.
Given the kind of logistical and, frankly, political realities of the border - of the underfunding of the departments that need to process asylum claims - is there still no justification in your view for a Title 42-style approach? I've reported on child migrants held at Fort Bliss, where there's been reports of COVID outbreaks, of course, but also of depression - children not being given the resources to thrive in it in a detention environment. Given the constraints, bottom line, is it okay to introduce migrants into that situation?
As I say, you can test them. There are a lot of public health measures that you can take. But if places like Disneyland are open, if people are being able to congregate for entertainment, people who are seeking life-protective shelter really should have a stronger claim on our due diligence. So it does feel as if this public health exclusion is a sort of pretext. You could also argue - and I'm not suggesting that one should roll back the fact that children are admitted - that a constituency is already being allowed in because, politically, it seems unworkable to exclude teenagers. Then doesn't that puncture your public health argument anyway? So we need to take the right public health measures, but they need to be proportionate, they need to be reasonable, and they can't be discriminatory. And I think this is really a stain on the Biden administration's record. It's really disappointing.