Title 42 Expulsions: Public-Health Order Used to Expel Asylum Seekers Without Screening, Over CDC Experts' Objections (March 2020)

What Happened

On 20 March 2020, as COVID-19 spread, the Centers for Disease Control and Prevention issued an order under Sections 362 and 365 of the Public Health Service Act. It suspended the "introduction" into the US of certain people from countries where a communicable disease exists, and took effect the same day (Federal Register, 26 March 2020). The order became known by its statutory title, Title 42.

Border agents used it to expel people who crossed the southern border, including asylum seekers, quickly and without the screening that US asylum law and the US's treaty obligations require: no asylum interview, no credible-fear screening, no assessment of the risk of torture (HRW). About 13,000 unaccompanied children were expelled before a federal court blocked the policy's use against them in November 2020. By April 2021 Human Rights Watch counted more than 642,700 expulsions since March 2020.

A public-health order the public-health experts opposed

Human Rights Watch, summarising Associated Press reporting, wrote that White House adviser Stephen Miller had proposed using public-health authority to close the border to asylum seekers, that "top CDC doctors refused to issue the order, saying there was no public health basis for it", and that Vice President Mike Pence pressured CDC Director Robert Redfield to issue it. One health official said: "They forced us… It is either do it or get fired."

Anne Schuchat, then the CDC's second-highest official, later confirmed the internal opposition to congressional investigators. "The bulk of the evidence at that time did not support this policy proposal," she said. Martin Cetron, director of the CDC's Division of Global Migration and Quarantine, opposed invoking the authority: "his view was that the facts on the ground didn't call for this from a public health reason" (CBS News).

What happened to those expelled

HRW reported that one organisation had counted at least 1,544 reports of murder, torture, rape, kidnapping and other violent attacks against asylum seekers and migrants sent to Mexico during the Trump administration. That count is not limited to Title 42 and includes people returned under the Remain in Mexico programme (see the Remain in Mexico entry).

The Biden administration kept the policy in place. This entry concerns its creation and use under Trump.

Legal Analysis

Non-refoulement. The US is a party to the 1967 Refugee Protocol, which binds it to Article 33 of the Refugee Convention, and to the Convention against Torture, whose Article 3 bars returning anyone to a real risk of torture. Both obligations require, in practice, that a person who may be at risk has some chance to say so and be assessed. Title 42 expulsions removed that chance. HRW concluded that the policy "is illegal and violates the human rights of those subjected to it", pointing to the non-refoulement obligations in the Convention against Torture, the ICCPR and the Refugee Protocol. Collective expulsion without individual assessment is the core of the violation.

Pretext. A state may restrict entry on genuine public-health grounds, but international law does not allow a health measure to override non-refoulement, and the measure must be necessary and proportionate. The CDC's own experts said the facts did not support the order. That evidence goes to whether this was a health measure at all or, as HRW put it, a way to close the border to asylum seekers using a different legal label.

Strongest defence argument. The government argued that a pandemic justified emergency measures at the border, that the statute gave the CDC broad power, and that congregate processing facilities posed real infection risks. The domestic statutory argument was at least arguable. But domestic statutory authority does not displace treaty obligations, and the evidence that CDC experts rejected the public-health rationale undercuts the necessity claim.

International crime? Deportation or forcible transfer under Article 7(1)(d) requires removal "without grounds permitted under international law" as part of a widespread or systematic attack against a civilian population. The expulsions were widespread and unlawful in part, but no credible authority has characterised them as an attack on a civilian population, and they were carried out under a published legal order. No international crime is shown.

Why This Grade

This entry is graded critical, with no war-crime classification.

• It is a structural, deliberate circumvention of the asylum system and of US treaty obligations on non-refoulement, applied to hundreds of thousands of people, including thousands of unaccompanied children, without individual assessment. That is the kind of mass due-process violation the critical grade describes.
• The pretext is documented by the CDC's own officials, which shows the circumvention was deliberate rather than a good-faith health measure.
• It does not reach the top grade because no element of an Article 7 crime against humanity, in particular an attack on a civilian population, has been shown.

Confidence in this grade: medium-high.