Biden's border chief candidate backs Trump's Title 42 policy denying right of asylum

How to process the thousands of migrants arriving at the U.S.-Mexico border each day while preventing further spread of the coronavirus has been one of the more hotly-debated issues facing President Joe Biden's immigration strategy.

On Tuesday, Tucson Police Chief Chris Magnus, Biden's pick for U.S. Customs and Border Protection commissioner, waded into the debate when he told a room full of senators he supported Title 42, the Trump administration-era policy invoked last year by the U.S. Centers for Disease Control and Prevention, or CDC, and carried over by Biden.

The rule allows border agents to expel asylum-seekers to Mexico without due process to prevent the spread of COVID-19. Magnus, who was speaking at a confirmation hearing in front of the Senate Finance Committee, also said he would support testing and vaccinating migrants in custody against the deadly virus.

"It's absolutely imperative we do everything possible to stop the spread of COVID-19," Magnus said in response to a question by Sen. Chuck Grassley, R-Iowa. "Title 42 is a CDC authority and I think it helps with this."

Immigrant advocates have argued that if the government creates a system to safely test and vaccinate migrants it shouldn't also be expelling them under Title 42. Since initiating the policy in March 2020, U.S. Border Patrol agents have expelled more than 1 million migrants under Title 42, according to CBP statistics.

Biden, who campaigned against many of Trump's immigration policies, has used Title 42 as an immigration enforcement tool rather than a public health policy, said Lee Gelernt, deputy director of the ACLU's Immigrants' Rights Project and lead litigator in a federal lawsuit to block the policy.

Migrants from Mexico and some Central American countries expelled under Title 42 wind up in dangerous northern Mexico border towns, where criminal gangs prey on them, advocates said. Haitian immigrants under the policy are flown back to Haiti, which has roiled with violence since its president was assassinated in July.

"They’re sending people back to extreme danger under the claim that they can’t be safely processed," Gelernt said. "They’ve dedicated their lives to public health yet they’re sending these families into extreme danger."

Magnus has been widely seen as a progressive choice to lead CBP, the largest law enforcement agency in the country. If confirmed, he will play a pivotal role in deciding whether to continue using Title 42. At Tuesday's hearing, he mostly voiced support for the policy.

"CBP certainly has a responsibility with implementing this policy," he said. "I will always comply with the law, even as it changes perhaps regarding Title 42, no matter what it is that the courts decide."

The CDC under the Trump administration invoked Title 42 of the federal Public Health Service Act, allowing U.S. Customs and Border Protection officials to expel undocumented migrants to prevent the spread of COVID-19 in holding facilities. Children and some families are exempt from the policy.

The Biden administration left the policy in place and in August the CDC indefinitely extended it, saying it "shall remain in effect until the CDC Director determines that the danger of further introduction of COVID-19 into the United States from covered noncitizens has ceased to be a serious danger to the public health."

A federal judge last month blocked the government from expelling asylum-seeking families under Title 42 but a federal appeals court later allowed the government to continue with the policy while an appeal moves through the court.

In a meeting with the USA TODAY editorial board and reporters earlier this month, Homeland Security Secretary Alejandro Mayorkas stressed that his department views Title 42 as a health policy, not an immigration enforcement tool -- and an important weapon in combating the coronavirus. Without Title 42, groups of migrants crammed into Border Patrol stations would put agents at risk and result in more infections, he said.

CBP agents this fiscal year have encountered more than 1.74 million migrants at the border, the highest number in two decades, according to agency statistics.

"We have seen the potential for the spread of the virus and it is something that endangers the migrants themselves, our personnel, local communities and the American public," Mayorkas said

Since the coronavirus battered Latin America and Mexico with ferocity, many of the migrants arriving at the border could be carrying the virus, making Title 42 an important public health tool, said Randy Capps, director of research for U.S. programs at the Migration Policy Institute.

"There's still a clear public health rationale" to keep Title 42, he said, "if we were past the pandemic here and in Latin America, there might not be."

Immigrant advocates, however, point to objections to Title 42 by health experts, such as a June report by Physicians for Human Rights criticizing the policy, and a letter last month signed by leading U.S. epidemiologists and public health experts calling on the Biden administration to rescind Title 42.

"With every day that goes by, the application of Title 42 exacts a terrible toll on the lives and well-being of asylum seekers turned away from the U.S. border and denied their right to seek asylum – a right that is enshrined in both domestic and international law," the letter read.

Critics of Title 42 appeared to get a boost this month from Dr. Anthony Fauci, Biden's top medical advisor, who, in an interview with CNN, said immigrants can get infected but "they're not the driving force" of the virus' spread in the U.S.

"Focusing on immigrants, expelling them ... is not the solution to an outbreak," he said.

Also this month, a senior State Department official and Biden advisor quit and sent a scathing internal memo criticizing the president's use of Title 42, calling the policy “illegal,” “inhumane” and “not worthy of this Administration that I so strongly support,” according to POLITICO, which obtained the memo.

With much of the workforce at border stations now vaccinated and the federal government creating more infrastructure to process migrants, the "close-quarters" argument begins to fall apart, said Adam Isacson, a border security researcher at the Washington Office on Latin America, a research advocacy group.

Federal officials should find ways to safely process migrants rather than expel them into dangerous Mexican border towns and deny them the right to seek asylum in the United States, he said.

Title 42 "doesn't trump the right to ask for asylum," Isacson said. "If the alternative is to send someone to a situation where they might actually get killed, you have to let them in."

Gelernt, the ACLU attorney, said CDC officials should stop giving "political cover" to the Biden administration by continuing to endorse the policy.

"Public health experts will not judge them kindly in the future if they discard their public health mission in favor of the administration’s political aims," he said.

Follow Jervis on Twitter: @MrRJervis.

This article originally appeared on USA TODAY: Title 42 denies right of asylum. Biden administration plans to keep it