Title 42 and the power to exclude: Asylum seekers and the denial of entry into the United States

Abstract

Debates to “secure the border” have often dominated immigration legislation. Since the COVID-19 pandemic began, this rhetoric has intensified with the use of the Title 42 program to “expel” asylum seekers without hearing the merits of their case. This article outlines how the Title 42 policy has exacerbated dangerous border crossings while advancing discriminatory policies which disproportionately affect non-White asylum seekers. Using the framework of Critical Race Theory, this article examines the impact(s) of race, ethnicity, and nationality within the immigration bureaucracy. It suggests that “race neutral” polices in immigration perpetuate racial subordination and exclusion for immigrants racialized as non-White. Intertwined with xenophobia and anti-immigrant bias, this work also suggests that public health rationales have long been used to exclude “unfit” or “unclean” migrants due to the “fear of contamination” and infection. The Title 42 program is a violation of human rights, immigration laws, and stipulations in the United Nations Charter which prohibits refugees from being expelled to countries where their lives or freedoms are threatened.

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