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Don’t use public health to rationalize keeping the Mexico border closed to asylum seekers

The Trump administration used COVID-19 as a pretext to close America’s land borders to asylum seekers, a misguided move that President Biden should reverse.

A migrant family wearing face masks crosses the border into El Paso, Texas, in Ciudad Juarez, Mexico, Feb. 26. February data from U.S. Customs and Border Protection shows the Biden administration has continued to use an existing public health rule, known as Title 42, to immediately expel more than 70 percent of asylum seekers and border crossers stopped at the border.Christian Chavez

In March of last year, just as the Trump administration was scrambling to respond in the early days of the COVID-19 pandemic, the US Centers for Disease Control and Prevention issued a strange emergency order that effectively shut down the US land border with Mexico to asylum seekers.

Strange because the move was opposed by the CDC’s own experts, who believed there was no public health justification for it. It was a solution in search of a problem: There was no immediate threat of coronavirus spread at US ports of entry at the border. And strange because while some air travel restrictions were enacted, most foreign nationals on international flights were still being allowed in.


It reportedly took the involvement of then-Vice President Mike Pence, who pressured the CDC to invoke its so-called Title 42 emergency authority, named for the section of US law that gives the agency this little-known power. Overruling the CDC’s scientists betrayed the White House’s true intention behind the push: It wasn’t about coronavirus risk but instead a pretext to close the US-Mexico border to would-be asylum seekers from Central America.

But what’s strangest of all is that the Biden administration has continued the policy, despite its grave consequences. Except for migrant children who show up unaccompanied, the Trump-era measure means expulsion, without asylum processing, for the vast majority of single adults and family units who show up at the border. Restoring due process at the border for all migrants — a legal right — must be a priority for President Biden. And the first step is to rescind the CDC order.

About those grave consequences: A new report from Human Rights First, a national advocacy nonprofit, documented nearly 500 instances of violent acts against migrants who were expelled to Mexico or barred from requesting asylum at the US-Mexico border. The incidents include assault, rape, and kidnappings. Last month, the Los Angeles Times reported that during the first year of the CDC order, migrants in fewer than 1 percent of more than 650,000 encounters at the US-Mexico border were able to seek asylum protections.


To no one’s surprise, former White House senior advisor Stephen Miller had already proposed misusing the public health statute allowing the CDC to restrict immigration and close down American borders — even before the coronavirus arrived. And he tried not just once but several times. Miller was told each time that invoking those emergency powers would probably be illegal.

So, when the coronavirus hit, Miller saw an opening. Scientific expertise was summarily dismissed. According to an investigative report from ProPublica, Dr. Martin Cetron, the CDC’s veteran director of global migration and quarantine, refused to sign off on the order. “It’s just morally wrong to use a public authority that has never, ever, ever been used this way. It’s to keep Hispanics out of the country. And it’s wrong,” Cetron told a colleague, according to ProPublica.

Medical professionals and security experts have repeatedly urged the CDC to rescind the order, underscoring that it does not protect public health. A legal expert called the order an “act of medical gerrymandering . . . crafted to override critical legal rights and safeguards in singling out only those arriving at the border without authorization.”


Indeed, using a statute designed for public health emergencies as a border management tool is simply bad policy, and one that has had harmful consequences. Biden should restore asylum protections at the border instead of treating migrants seeking to exercise their legal right to asylum largely as Trump did.

Editorials represent the views of the Boston Globe Editorial Board. Follow us @GlobeOpinion.