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
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