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In mid-2019, Victor and Aurelio fled Honduras in the middle of the night and began their journey to the southern border of the U.S. to ask for asylum. In Honduras, strangers, teachers, landlords, employers — and even their own families — persecuted them for being gay. Fortunately, Victor and Aurelio were able to enter the United States and ask for protection. Though the road to securing asylum was not easy, they succeeded, and they have recently celebrated their lives together by getting married.
However, if the couple had arrived just six months later, they would have been subjected to summary expulsion under Title 42, a public health law that the Trump and Biden administrations have wielded against migrants and asylum seekers 1.9 million times over the course of the last two years. Under Title 42, thousands of asylum seekers just like Victor and Aurelio have been wrongly denied their day in court and returned to unsafe places south of the border. In March, the Biden administration announced that it would finally end Title 42 expulsions by May 23. However, a federal judge in Louisiana ordered the Biden administration to keep the policy in place, citing procedural defects in its repeal.
But continued Title 42 expulsions are an unjustifiable and heinous corruption of the law. As one federal court recently noted, “this is March 2022, not March 2020. The [Centers for Disease and Control’s Title 42] order looks in certain respects like a relic from an era with no vaccines, scarce testing, few therapeutics, and little certainty.” Later, that same court observed, “We are not cavalier about the risks of COVID-19. And we would be sensitive to declarations in the record by CDC officials testifying to the efficacy of the [Title 42] Order. But there are none” (emphasis added.)
The U.S. government’s distortion of Title 42 into an anti-immigration measure is contrary to its purpose and intended function. Title 42 was created by the 1944 Public Service Health Act to regulate the entry of individuals with communicable diseases. For example, if a nation had a much higher incidence of tuberculosis than the U.S., health authorities could restrict entry of nationals from that country to protect public health. However, under the Trump and Biden administrations, Title 42 was never tailored to nations with higher COVID-19 rates than ours but rather applied to nearly all migrants and asylum seekers from every country presenting themselves at the southern border. As such, the policy does not apply to individuals based on risk of infection or exposure to COVID-19 but rather targets them based on their immigration status. That kind of blanket restriction is not a permissible application of the policy. Instead, it is a gross overreach of authority that provides no real public health benefit.
Furthermore, as federal and state governments lift other kinds of COVID-19 restrictions, it makes the Title 42 expulsions even more absurd. From the start, top CDC officials opposed using the provision to expel asylum seekers, noting that doing so does nothing to protect the public health. Two years later, as pandemic restrictions evaporate, including mask mandates on international flights, it is even more plainly evident that the purpose of the practice is not to protect Americans from COVID.
So why has this program that has so little relevance to public health been implemented for so long? Simple, to keep refugees out of the United States. And in so doing, the Trump and Biden administrations have contravened both U.S. and international law — and put LGBTQ+ refugees at risk of being persecuted or tortured. That dangerous, xenophobic motivation is morally repugnant and also prohibited by federal statutes that enshrine the right to ask for protection from persecution or torture. Under the current Title 42 policy, asylum seekers are denied due process, cannot request asylum at all, and never get their day in court. Strikingly, U.S. refugee and immigration laws guarantee the exact opposite: the opportunity for individuals to request protection at ports of entry or after crossing into the U.S.
Every day that Title 42 expulsions continue, LGBTQ+ people will suffer. Asylum seekers with meritorious claims will continue to be expelled and subjected to persecution, torture, or death. Indeed, LGBTQ+ people have a remarkably high success rate of being granted asylum precisely because their countries of origin are so dangerous. In addition, according to Human Rights First, nearly 10,000 people have been kidnapped, tortured, raped, or subjected to other violent attacks during the Biden administration after being blocked from entering the U.S. under Title 42. This staggering number includes hundreds of LGBTQ+ asylum seekers.
To be sure, if the Title 42 order is lifted, there will be an increase in migrants and asylum seekers entering the U.S. The media commonly stokes fear of the floodgates exploding by referring to this as a “surge” or “spike” in immigrants. This is a false narrative. The only reason there are a lot of asylum seekers at the border is that we’ve refused their entry for more than two years. Of course, there’s a backlog. At the same time, we are the richest nation in the world with a population of 332 million people. We have room. For perspective, President Biden announced this year that our nation would accept up to 125,000 refugees from abroad to be resettled in the U.S. and an additional 100,000 Ukrainians displaced by war. Excellent, Mr. President, and well done. Now it is time to extend that same compassion to the refugees at our doorstep who have been unjustifiably forced to wait for justice for years. Please, do everything in your power to end this policy as soon as you can.
Aaron C. Morris is the executive director of Immigration Equality, the nation’s leading LGBTQ+ and HIV-positive immigrant rights organization. Through direct legal services, policy advocacy, and impact litigation, Immigration Equality advocates for immigrants and families facing discrimination based on their sexual orientation, gender identity, or HIV status.