Title 42: Challenging our Capacity to Welcome Refugees at the Border

By Bishop Edward J. Weisenburger

The work of the Church has never been more important to affirm that we are created in the image and likeness of God, and our call is to protect the life and dignity of every person. We believe we can be a community and a country that welcomes the stranger. Ministries of our Diocese, such as the Kino Border Initiative and Casa Alitas (a program of Catholic Community Services), bear witness to migrants fleeing conflict, violence, human rights abuses, persecution, and climate-related disasters day in and day out.

Yet, when these individuals arrive at the border, they are not allowed to initiate any legal process by approaching the port of entry. They are denied their universal human right to asylum. Families fleeing violence who do try to cross the border are often apprehended, detained, rapidly expelled from the U.S., and returned to dangerous situations.

The U.S. – once a global leader in refugee resettlement and protection – has a great task ahead of itself: to restore asylum and recommit to its promise to uphold protocols and protections for asylum seekers outlined in the 1951 Convention relating to the Status of Refugees. The implementation of one obscure U.S. code, Title 42, that is part of U.S. health law, is especially relevant to this discussion because of its dangerous ramifications on the thousands of migrants awaiting asylum. But first we must understand how we got here.

BACKGROUND

The U.N. first defined the term “refugee” in the 1951 Convention in the aftermath of World War II, which displaced at least 60 million people. These laws are grounded in Article 14 of the Universal Declaration of Human Rights, which recognizes the rights of a person who is “unable or unwilling to return to their country of origin, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion”. Importantly, the Refugee Convention contains various safeguards against expulsions of refugees based on the principle of non-refoulement. According to the Protocol, “no one shall expel or return (‘refouler’) a refugee against his or her will, in any manner whatsoever, to a territory where he or she fears threats to life or freedom.” The US made these laws part of our domestic immigration law in 1980, but has struggled to live up to these commitments.

Set against this backdrop, we examine Title 42, the pandemic policy that bars migrants from entering the United States under the guise of public health and safety.

WHAT IS TITLE 42 AND HOW HAS IT BEEN IMPLEMENTED AT THE BORDER?

In March 2020, when the pandemic escalated globally, the Trump Administration used COVID-19 as a pretext to effectively close the US border, blocking nearly all asylum seekers searching for safety, using Title 42. Title 42 is an old and obscure public health policy (the Public Health Service Act of 1944) that prohibits entry when the Director of Disease Control believes “there is a serious danger to the introduction of [a communicable] disease into the United States.” Based on an unprecedented interpretation of the 1944 act, the U.S. is able to deny entry to anyone except U.S. citizens, lawful permanent residents, and military personnel who arrive at a port of entry with valid travel documents. The rule allows U.S. Customs and Border Protection (CBP) to implement and enforce this order, including expelling individuals who arrived at the U.S.-Mexico border, without giving them the opportunity to seek asylum. In November 2021, the US government modified the rule to allow tourists to enter across the land borders, but continues to exclude people fleeing violence.

Public health experts state that expelling refugees protects no one. Experts and advocates have discredited the public health rationale as a basis for the policy and instead draw attention to the fallacy and hypocrisy of this provision that subjects hundreds of thousands of migrants to expulsions, meanwhile granting unrestricted travel for people with documents across international borders. For that reason, the Bishops of Mexico and the United States have declared:

“As U.S. and Mexican bishops along the border, we witness daily the dilemma that our migrant sisters and brothers face. For most, the decision to migrate is not motivated by an indifference toward their homeland or the pursuit of economic prosperity; it is a matter of life or death. The situation is all the more difficult for children.

Challenges such as these require humanitarian solutions. Undoubtedly, nations have the right to maintain their borders. This is vital to their sovereignty and self-determination. At the same time, there is a shared responsibility of all nations to preserve human life and provide for safe, orderly, and humane immigration, including the right to asylum.

For that reason, we renew our appeal to our governments, to political leaders, and civil society, that they work together to welcome, protect, promote, and integrate migrants in accordance with their intrinsic dignity, as well as work with other countries in the region to eliminate conditions that compel their citizens to resort to dangerous and irregular migration, producing long-term solutions. “Unlike disagreement and conflict,” Pope Francis reminds us, “persistent and courageous dialogue does not make headlines, but quietly helps the world to live much better than we imagine.”

Conscious of the importance of public health and safety, we encourage policies supported by sound scientific rationales. We maintain that family unity must be a vital component of any response. We ask that special attention be given to particularly vulnerable populations, such as children. We strongly urge that structures be put in place and reforms in our laws be made to both promote a welcoming culture for our sisters and brothers and respect the sovereignty and safety of our countries.”

HOW DOES TITLE 42 AFFECT ASYLUM SEEKERS AT THE BORDER?

“On the border between the U.S. and Mexico, U.S. officials are rejecting people who have experienced persecution and violence without giving them a chance to make their case…To reject asylum seekers is to hand them a death sentence.”– Josue [not real name], an asylum seeker from southern Mexico and one the migrant organizers for #SaveAsylum.

Last year, thousands of asylum seekers made the dangerous journey to the border only to be turned away by immigration authorities or expelled without providing migrants an opportunity to seek protection in the United States. Asylum seekers waiting in Nogales, Sonora speak powerfully to the impact that Title 42 has on their lives. One mother, Eleuteria, shared, “Honestly, our experience living at the border, waiting for the border to reopen, was terrible. My husband and son were threatened, robbed, and extorted, And the truth is, every day we felt fear and uncertainty, among other things we experienced in Nogales.”

As Suyapa, an asylum seeker from Honduras and single mother of three children said, “I want you to take us seriously, especially us women. We have endured many things on the way here; hunger, the cold, drinking water from dirty puddles, injured feet, knowing that our children also run the risk of facing abuse and illness. We arrive with a lot of fear because of the rumors that people are kidnapped here. We need support. We need you to listen to us. The only thing we seek is a better life for our children. And to see how we can continue moving forward safely.” 

There are clear parallels between the migrants caught in this contemporary crisis and what our Holy Family - Mary, Joseph, and Jesus - endured to escape persecution and imminent death, and to find refuge in Egypt. According to the Gospel of Matthew, “Every stranger who knocks at our door is an opportunity for an encounter with Jesus Christ, who identifies with the welcomed and rejected strangers of every age.” (Matthew 25:35-43). We heed His Holiness Pope Francis’ message on World Day of Migrants and Refugees to be in solidarity with the sojourner by “welcoming, protecting, promoting, and integrating migrants and refugees.” It is our spiritual, moral, and humanitarian imperative to put an end to the countless harmful patterns and practices and to build support for protection and aid for migrants seeking asylum.

WHAT WILL HAPPEN IF TITLE 42 IS ENDED?

The CDC recently announced that the US government will suspend the use of Title 42 on May 23rd, 2022. That change will mean that mothers and fathers like Suyapa, Eleuteria, and Josue, along with their children, will be able to initiate legal processes to seek asylum in the United States. In reaction to this announcement, Bishop Mario E. Dorsonville, auxiliary bishop of Washington and chairman of the U.S. Conference of Catholic Bishops’ (USCCB) Committee on Migration, stated:

“We welcome the end of this harmful policy. In its place, my brother bishops from along the U.S.-Mexico border and I have long urged policies that are supported by sound scientific rationales, respect migrants’ intrinsic dignity, preserve human life, and provide for safe, orderly, and humane immigration, all while acknowledging the right of nations to maintain their borders…

We urge the Biden Administration to implement a comprehensive plan for the border that ensures the humane treatment of all persons and respects their God-given dignity, while safeguarding due process. This can only be achieved successfully through government-led preparations made in close coordination with border communities and civil society across the country, especially organizations providing humanitarian support.”

Diocesan ministries such as the Kino Border Initiative and Casa Alitas are preparing to respond to this change. As a Diocese animated by the miracle of our Lord’s resurrection, we welcome this opportunity to rise to the challenge to welcome our brothers and sisters and to ensure that our values are reflected in the nation’s laws and policies. Many parishioners and community members of good will and great faith are already part of offering this welcome, and each one of us in the Diocese has the opportunity to respond to that call through learning more about realities at the border, volunteering our time in service to newly arrived refugees, supporting the work of the Diocese with our finances, and sharing with our neighbors our nuanced understanding of realities at the border in a way that is rooted in Catholic teaching.