Public health and the power to exclude: immigrant expulsions at the border

• Author: Sarah Sherman-Stokes
• Position: Associate Clinical Professor of Law, Boston University School of Law
• Pages: 261-289

PUBLIC HEALTH AND THE POWER TO EXCLUDE:

IMMIGRANT EXPULSIONS AT THE BORDER

SARAH SHERMAN-STOKES*

ABSTRACT

We are presently in the midst of a crisis at the U.S.-Mexico border as

courts and the Biden administration struggle to manage thousands of immi-

grants waiting to seek legal protection, typically asylum, in the midst of a

global pandemic. Beginning in March of 2020, against the advice of public

health experts, the U.S. government closed the southern U.S.-Mexico border,

disproportionately impacting would-be asylum seekers from Central

America, who are now immediately expelled from the United States under a

process known as “Title 42” should they reach the border. Not only do

these expulsions lack a legitimate public health rationale, but they also vio-

late our domestic and international legal obligations to protect immigrants

at risk of persecution or torture.

This Article begins by exploring the historic intersections of public health

and immigration law and the origins of federal quarantine and exclusion

power. Woven into the Article are first-hand accounts of advocates on both

sides of the border who have witnessed the devastating impact of COVID-19

era immigrant expulsions. Ultimately, this Article argues that we must seek

alternatives—including ending Title 42 expulsions, deferring to public health

experts, dispatching additional resources to the border and ending our reli-

ance on immigration detention.

TABLE OF CONTENTS

INTRODUCTION ......................................... 262

* Associate Clinical Professor of Law, Boston University School of Law. Thank you to Sabi

Ardalan, Kate Evans, Lindsay Harris, and Laila Hlass for thoughtful feedback, as well as to members of

the 2020 NYU Clinical Law Review Writer’s Workshop. Thanks also goes to Boston University School

of Law, and Dean Onwuachi-Willig, for summer research grant support for this project. To the tenacious

advocates on the ground, along the southwest border, thank you for taking the time to graciously speak

with me about your work, and the experiences of your clients. Finally, special thanks to research assistants

Anyela Perez and Maggie Lovric for their careful edits and excellent research. All errors are my own. ©

2021, Sarah Sherman-Stokes.

261

I. PUBLIC HEALTH AND IMMIGRATION LAW . . . . . . . . . . . . . . . . . . . . 267

A. Health Based Exclusions . . . . . . . . . . . . . . . . . . . . . . . . . 267

B. Origin of Federal Quarantine Power . . . . . . . . . . . . . . . . 270

C. Application of Federal Quarantine Power during COVID-

19 ......................................... 271

II. SNAPSHOTS FROM BOTH SIDES OF THE BORDER . . . . . . . . . . . . . . . 272

A. “Central American Asylum Seekers Are Rendered Invisible By

Title 42.”.................................... 274

B. “There Is No Asylum Anymore.”. . . . . . . . . . . . . . . . . . . 276

C. “There Has Always Been Worry, But Now There Is

Despair.”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278

D. “If They Stay, They Can Be Killed. If They Flee, They Can

Be Killed.”................................... 279

III. THE LEGACY OF RACISM DIRECTED TOWARD CENTRAL AMERICAN

REFUGEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280

IV. TITLE 42 ALTERNATIVES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284

A. Title 42 Violates Our Domestic and International Legal

Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285

B. We Must Heed the Advice of Public Health Experts . . . . . . 286

C. Dispatch Additional Resources to the Border to Process

Migrants Quickly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286

D. End Reliance on Detention and Congregate Settings and

Promote Family Unity. . . . . . . . . . . . . . . . . . . . . . . . . . . 287

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289

INTRODUCTION

Quarantine power, coupled with legacies of xenophobia, racism and a his-

toric distrust of noncitizens and the public health threats they allegedly bring

to our shores, means that in the wake of a public health crisis, the U.S. gov-

ernment often acts swiftly to exclude foreigners. The COVID-19 pandemic

has been no exception. Beginning in March of 2020, the U.S. government

closed the southern U.S.-Mexico border against the advice of public health

experts, disproportionately impacting would-be asylum seekers from Central

262 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 36:261