A senior legal adviser to the State Department has stepped down in protest of the Biden administration’s continued use of Title 42, which allows immigrants to be turned away without the option of asylum during a public health crisis.
Harold Koh said in an Oct. 2 memo preceding his departure that the Biden administration should end the “illegal and inhumane” Trump-era policy because “it simply is not worthy of this Administration that I so strongly support.”
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Koh alleged that the rule violates United Nations human rights agreements, specifically the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. CAT prohibits “expelling, returning, or extraditing any person, without exception, to any State where there are ‘substantial grounds for believing he would be in danger of being subjected to torture.’”
Title 42 allows immigration officials to turn away or deport people at the borders without allowing them to make an asylum case during a health crisis such as the coronavirus pandemic. Koh claimed that Title 42 violates the “without exception” portion of the convention, putting the United States in opposition to international law.
“While these policies were undeniably adopted amid turmoil, this Administration need not persist in pursuing them,” Koh wrote.
He also pointed out that the treatment of Haitian immigrants at the southern border stands in contrast to the welcome the U.S. gave to Afghan refugees following the evacuation.
White House press secretary Jen Psaki said at a Monday press conference that she had not seen the memo and that it was up to the Centers for Disease Control and Prevention to make a decision about the continued use of Title 42.
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“We don’t see Title 42 as an immigration policy,” she said. “It is a public health authority because we are still in the middle of a pandemic, and it is determined by the CDC. It is also true that there are several exceptions for Title 42, including those who are fleeing persecution who express a concern or fear. It goes through a process.”
The CDC upheld Title 42 on Saturday, saying that immigration risks “serious danger of the introduction of COVID-19 into the United States, and the danger is so increased by the introduction of such noncitizens that a temporary suspension is necessary to protect the public health.”
Koh’s resignation comes after a special envoy to Haiti resigned last month to protest the return of Haitian migrants from Central America back to their home country.
