American Oversight Continues Investigation of Title 42 with Lawsuit for Related Records

In March 2020, as the coronavirus pandemic accelerated its grim toll, the Trump administration invoked Title 42, then a little-known provision of the Public Health Service Act that allows the federal government to prohibit the entry of people and goods into the United States in the interest of public health.

Since its implementation, public health experts have criticized the policy as a thinly veiled anti-immigration measure, arguing that it does not actually mitigate the spread of Covid-19. Additionally, legal scholars contend that Title 42 violates international law and undermines the U.S. refugee protection regime. After facing intense backlash for continuing the policy, the Biden administration sought to revoke it — a move that was blocked in May by a federal judge.

American Oversight has launched several investigations into the development and implementation of Title 42, and on Monday filed a Freedom of Information Act lawsuit for certain communications and analyses regarding the policy. Through FOIA requests, our investigations have already revealed the role played by former White House Senior Adviser Stephen Miller in coordinating efforts to produce the order. We have also obtained a database of complaints and allegations that illustrate the disproportionately devastating impacts the policy has had on migrants, particularly those of certain sexual or racial identities.

American Oversight’s Investigation

In May 2020, we asked the Department of Health and Human Services and the Centers for Disease Control and Prevention for communications between top officials and Miller, an adviser to former President Donald Trump and a lead architect of some of the Trump administration’s harshest anti-immigrant policies. Well before the pandemic, Miller had been pushing for invoking Title 42 to close off immigration. During the early months of the pandemic, he spearheaded the effort to expel asylum-seekers at the border under the guise of mitigating Covid-19 spread, as revealed in emails obtained by American Oversight earlier this year. The records — which were the first documented evidence of Miller’s role in the development of Title 42 and have since been cited by reporters in their coverage of the policy’s origins — show that in the days leading up to the CDC’s Title 42 announcement, Miller organized meetings about the policy with a small group of interagency officials.

In response to our request to the Department of Homeland Security’s Office of Civil Rights and Civil Liberties (CRCL) for complaints the office received regarding Title 42, we acquired a database summarizing allegations of civil rights violations and abuse committed against migrants expelled to Mexico under the policy. The allegations as detailed suggest that expulsions under Title 42 are particularly dangerous for unaccompanied migrant children, Black migrants and those racialized as “Black,” migrants with chronic health conditions, and those identifying as LGBTQ+. 

A number of complaints demonstrate that Black migrants expelled under Title 42 are vulnerable to racist attacks in Mexico because of their visibility as a racial minority and their assumed inability to speak Spanish. LGBTQ+ migrants often face verbal or physical violence because of their (imputed or actual) gender identity or sexual orientation; lesbian migrants, for instance, have been subject to “corrective” rape and other forms of sexual violence. Customs and Border Protection (CBP) officers sometimes question unaccompanied children — who are supposed to be exempt from Title 42 and instead processed under Title 8 — about their “actual” ages, accuse them of being gang members, or even summarily expel them, incorrectly claiming there are “no [humanitarian] exceptions whatsoever” under Title 42.

The allegations detailed in the database indicate that CBP was potentially ignoring recommendations made by CRCL in a memo, which American Oversight obtained in response to a request to the office for assessments relating to migrant safety concerns regarding Title 42. In the memo, CRCL recommended that CBP officers document instances in which an individual expresses a credible fear claim that may qualify them for a Title 42 exception, and that this documentation be transmitted to U.S. Citizenship and Immigration Services (USCIS) for proper assessment. Notably, CRCL also recommended that CBP issue formal guidance advising its agents to consider particular vulnerabilities, like certain medical or health conditions or an increased risk of harm because of sexual orientation or gender identity, when exercising its discretionary authority on Title 42 exceptions.

Title 42’s Continuation

This past spring, the Biden administration announced it would stop expelling migrants under Title 42 starting in late May. In April, Arizona and 21 other states filed a lawsuit in the Western District of Louisiana asking a judge to stop the Biden administration from lifting Title 42, with Texas filing a similar lawsuit later that month, arguing that lifting the order would cause chaos at the southern border. In the case brought by Arizona and other states, Judge Robert R. Summerhays ruled that ending Title 42 amounted to a violation of administrative law. The Department of Justice appealed that decision in the Fifth Circuit Court of Appeals shortly after it was issued.

Immigration experts have frequently pointed out that Title 42 fails to secure the border, hinders other immigration enforcement priorities, and has led to an increase in crossings between official ports of entry. Despite this reality, several top administration officials and members of Congress were opposed to ending the policy, relying on unfounded immigration deterrence and public health reasons as justification.

American Oversight’s investigation of Title 42’s development and execution is ongoing, as we still lack records of the Trump and Biden administrations’ public health and safety assessments of the policy, as well as relevant communications between top agency officials and the White House. And we still have not received any written analyses or risk assessments about potential Covid-19 spread during Title 42 expulsions.

In response, on Aug. 22, American Oversight filed a lawsuit against several federal agencies seeking Title 42 records. We sued HHS for communications with or about Stephen Miller pertaining to the issuance and implementation of CDC’s Title 42 rulemaking; HHS and CDC for final assessments and analyses regarding the public health impacts of Title 42 and Title 42-related expulsions, and any final memoranda justifying the continuation of the policy; HHS and CDC for email communications sent by these agencies to anyone in the White House or National Security Council regarding Title 42; and the Department of State for memoranda or similar documents submitted via the agency’s dissent channel on matters related to Title 42, as well as assessments of safety concerns for individuals expelled under Title 42.

American Oversight will continue to track and investigate instances of immigrants’ rights abuses resulting from Title 42 and other Trump-era immigration policies.

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