A health rule that limits the entry of illegal immigrants into the United States is now being used by the American government against Brazilians as well. The measure streamlines the process to send back, on flights of deportees, those who try to cross the border to live in the country illegally.
Known as “Title 42” and treated as a public health order, the determination was introduced during Donald Trump’s administration, in March 2020. Since then, the rule cited a “serious concern about the introduction of Covid-19 in USA” as justification for the immediate expulsion of persons who attempt to enter the country in violation of travel restrictions or illegally.
The same determination began to be applied against Brazilian travelers in October 2021 and has caused families with children and adolescents to be returned to Brazil.
Those who follow the theme see a direct relationship between Title 42 and the phenomenon of January 26, when Brazil received a flight with 211 Brazilian deportees. Of the total, 90 were minors — including children up to 10 years old. The number of children and adolescents returned to the country was unprecedented.
Although he took over the White House with the promise of implementing a more humane approach to immigration, President Joe Biden continued to adhere to the same health rule as his predecessor and lived through months of an unprecedented crisis on American borders.
For specialists, however, it is not clear why Title 42 started to be applied against Brazilians only after a year and a half of validity against immigrants of other nationalities and origins.
For Saulo Stefanone Alle, a doctor in international law from USP, the Covid pandemic may in fact be part of a public health emergency, despite the fact that the health rule was not created specifically in reference to the coronavirus.
“This law is part of the American Health Code and was supposedly included on the occasion of Covid-19 itself”, explains Alle. “It is a rule that allows the US government to prevent the entry of a foreigner on the basis of health protection.”
According to him, the international health regulation allows countries to adopt certain protection measures when there are technical justifications. “We must also be careful not to commit injustice”, he ponders.
Without Title 42, Brazilians trying to enter the country illegally benefited from another rule that prohibits the separation of migrant families.
When stepping on American soil accompanied by an underage first-degree relative and surrendering to the American authorities, a migrant asks for asylum and responds to the process in freedom. This is because a child cannot remain alone during repatriation procedures to Brazil or acceptance by the US government.
Smugglers and coyotes saw business opportunities and began to migrate adults accompanied by a minor, in the informally known system called “cai cai”. As a series of reports by the sheetthey forge families and even hire children to ensure that clients cross the border through the scheme.
Guilherme Favetti, criminalist at Favetti Sociedade de Advogados, said that the new measure applied to Brazilians opens a gap for the migrant to be expelled if he poses any kind of risk to the country — each country has an understanding of what that risk would be.
With expulsion, families don’t even have a chance to respond to an asylum application process. As a result, they are not detained for long and quickly return on flights of deportees to Brazil.
For Favetti, with the application of the law, the process is much faster because two mechanisms that would be used for asylum seekers are removed from the migrant: defense and appeal. Thus, the process differs from deportation, which is an act of removal of a foreigner from the country who is in an irregular situation after the end of the process.
Therefore, the lawyer criticizes the American strategy. “I see it with a bad eye because expulsion has very subjective criteria, it doesn’t bring specific criteria about which countries and which diseases [podem levar à expulsão]. This in the wrong hands can become a law of authoritarianism.”
According to testimonies obtained by the sheet, men and women were handcuffed in front of their children on the deportees’ flight that arrived in Brazil on January 26. Passengers told the report that they had been mistreated, and authorities involved in the process confirmed that they had received similar reports.
The use of handcuffs on Brazilian citizens deported from the United States created an impasse between the government of Jair Bolsonaro (PL) and that of Joe Biden.
The Itamaraty has been making appeals since late last year to stop the practice and improve the treatment given to deported Brazilians, but it has been ignored. Although the request to abolish the use of handcuffs applies to all deportees, according to people involved in these operations, there was an understanding that people traveling with their families, in particular, would not be subjected to this situation.
The Itamaraty even said that the situation is viewed with “great concern”. According to the ministry, the Minister of Foreign Affairs, Carlos França, spoke by telephone with the US Secretary of State, Antony Blinken, on January 30 to discuss the matter. So far, the response of the American authorities to the Brazilian authorities is that new measures are being studied.
