Civil Society Letter on Immediate Actions to Mitigate the Harms of Title 42

Dear President Biden, Secretary Mayorkas, and Director Walensky:

The right to seek asylum in the United States is in peril. In spite of conflicting court decisions, the White House and federal agencies maintain vast authority to uphold this fundamental right. We commend the April 2022 decision to lift the Title 42 order and the immediate action taken to appeal the May 20 ruling in Louisiana v. Centers for Disease Control and Prevention. But you must not stop with these actions alone. The undersigned civil society organizations write to urge immediate action to preserve asylum and refugee law at the United States’ borders to the fullest extent, consistent with current court decisions concerning the use of Title 42.

Specifically, we urge the administration to:

1. immediately commence rulemaking to rescind the Centers for Disease Control and Prevention (CDC)’s Title 42 order (even though such a process should not be legally required);
2. publicly and proudly defend your plans to restore access to asylum and forcefully oppose legislative efforts to codify or extend the Title 42 order; and
3. do all that is within your power to restore asylum access and mitigate the harms of Title 42 while it remains in effect.

The CDC’s initial Title 42 orders were used to permit the mass expulsions of migrants arriving at U.S. borders without a basic screening for asylum. Even at its inception, the Title 42 policy lacked a legitimate public health rationale but was put in place when then-Vice President Pence overruled experts at the CDC. Expulsions overwhelmingly target people seeking asylum who are Black, Brown and Indigenous, in sharp contrast to the administration’s commitment to racial equity. Human rights groups have tracked at least 10,250 reports of murder, kidnapping, rape, torture, and other violent attacks against people blocked in or expelled to Mexico due to Title 42, just since this administration took office. Thousands of Haitians seeking refuge in the United States have been expelled to escalating violence and acute food insecurity in Haiti under the policy. Title 42 expulsions exacerbate chaos at the border by forcing people to attempt multiple border crossings to seek safety or reunite with family, fueling smuggling networks and inflating border crossing statistics, and can lead to family separation.

Every day that expulsions under Title 42 continue, the United States’ domestic and legal refugee obligations are further undermined. United States law requires that all people arriving at our borders and ports be permitted full and fair access to seek asylum. The United States is also legally obligated, under federal law and international treaty obligations, to never return people to a country where they will be persecuted because of a characteristic they cannot or should not have to change or be subjected to torture.

We urge you to use all available authority to comply with these obligations—to the greatest extent permissible under existing court orders—in order to ameliorate the harms caused by Title 42 and ensure access to asylum. As noted above, this should begin first and foremost with an immediate rulemaking to rescind the CDC’s Title 42 order. The administration should also, as is consistent with the Louisiana decision, utilize exceptions to Title 42 to ensure people at risk of return to harm are able to seek safety. To comply with our non-refoulement obligations and, consistent with the ruling of the Court of Appeals for the D.C. Circuit in Huisha-Huisha v. Mayorkas, the United States must affirmatively ensure that it does not return refugees to a country where they would be persecuted or tortured. Border officers must ask the basic, long-standing questions about fear of return in a language the person speaks fluently. Expecting arriving refugees, many of whom recently fled violence and do not speak English, to spontaneously, loudly and clearly articulate a fear of return to border patrol personnel means many in need of safety will be sent back to harm or death.

These steps must be undertaken on a non-discriminatory basis at and between ports of entry for people of all races and nationalities, and for families as well as adults seeking refuge.

In 1980, the U.S. Congress unanimously passed the Refugee Act, codifying in U.S. law the Refugee Convention protections drafted by the international community in the wake of World War II’s atrocities. Today, forty years later, those protections are at grave risk. The U.S. failure to uphold refugee law and human rights sets a terrible example for other countries, which host the vast majority of the world’s refugees, and subverts respect for international law globally. We implore you to urgently take all steps within your authority to protect the United States’ standing as a haven for those seeking refuge.