“Illegal and Inhumane”: Biden Administration Continues Embrace of Trump Title 42 Policy as Attacks on People Seeking Refuge Mount

Nine months after taking office, President Biden’s administration continues to embrace and defend, rather than end, the Trump administration’s “Title 42” policy, which misuses public health authority to violate refugee law, block asylum at U.S. ports of entry, and expel people seeking refuge to danger. The suffering of families, adults, and children subjected to this policy continues to mount, with at least 7,647 kidnappings and other attacks on people blocked or expelled under Title 42 since President Biden took office. In the last month alone, the Biden administration used this policy to illegally expel nearly 8,000 Haitians to life-threatening insecurity in Haiti. The U.S. Department of State’s top legal expert, former Yale Law School Dean Harold Koh, resigned from the Department in October 2021 after concluding that the Biden administration’s continued use of Title 42 to expel people seeking protection is “illegal and inhumane.”

Last week, the Biden administration announced plans to restart the previously-terminated Migrant Protection Protocols (MPP, also known as the Remain in Mexico program), another deadly and illegal Trump-era policy that forced asylum seekers to remain in extreme danger in Mexico to “wait” for their U.S. immigration court hearings. The administration can, and must, terminate these policies, uphold U.S. refugee laws and treaties, and restart asylum protections along the U.S.-Mexico border, including at ports of entry.

Epidemiologists and public health experts have continued to condemn the misuse of Title 42, explaining in September 2021 that the Centers for Disease Control and Prevention (CDC) order “does not provide adequate public health justifications for expelling asylum-seeking families at the border” and that “expulsions magnify the risks of COVID-19 transmission.” In a September 2021 letter to Biden administration officials and the CDC Director, public health experts again expressed concern that the CDC has “endorsed and extended the implementation of the scientifically baseless and politically motivated Title 42 order.” In mid-October 2021, the U.S. government announced that it would lift restrictions on non-essential travel at the border, allowing vaccinated individuals with “appropriate documentation” to enter the United States, but inexplicably continues to use Title 42 to ban people requesting life-saving asylum protections.

The United Nations High Commissioner for Refugees has urged the United States to “swiftly lift the public health-related asylum restrictions that remain in effect at the border and to restore access to asylum for the people whose lives depend on it, in line with international legal and human rights obligations.

For this report, Human Rights First researchers conducted in person and remote interviews with migrants and asylum seekers, attorneys, shelter and other humanitarian staff, and legal monitors. Researchers spoke with dozens of migrants and asylum seekers in person in Tijuana in September 2021 and conducted additional interviews with asylum seekers in other parts of Mexico by telephone between September and October 2021. The report draws on data from an electronic survey of asylum seekers in Mexico conducted by Al Otro Lado between August and September 2021, as well as information from U.S. government data received through a Freedom of Information (FOIA) request by Human Rights First to the Department of Homeland Security (DHS), legal complaints, media sources, and other human rights reports.

This report is an update on prior research on the expulsion policy by Human Rights First in May 2020, December 2020, April 2021 (with Al Otro Lado and Haitian Bridge Alliance), May 2021 (with RAICES and Interfaith Welcome Coalition), June 2021, July 2021 (with Hope Border Institute), and August 2021.



  • Julia Neusner
  • Kennji Kizuka

Published on October 21, 2021


Related Posts

Seeking asylum?

If you do not already have legal representation, cannot afford an attorney, and need help with a claim for asylum or other protection-based form of immigration status, we can help.