Ten Reasons to End the Title 42 Policy

March 20, 2022 will mark two years since the Trump administration began to use the Title 42 policy to block and expel to danger people seeking protection at the U.S.-Mexico border, denying them an opportunity to request asylum in the United States.

March 20, 2022 will mark two years since the Trump administration began to use the Title 42 policy to block and expel to danger people seeking protection at the U.S.-Mexico border, denying them an opportunity to request asylum in the United States. After more than a year of implementing this illegal and deadly policy, the Biden Administration is finally reportedly considering ending it. Below are ten reasons why the Biden administration should definitively end the Title 42 policy, immediately comply with U.S. law and treaty requirements by restarting asylum processing along the border, including at ports of entry, and welcome with dignity families, children, and adults seeking safety in the United States.

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The Title 42 policy:

  1. Violates Law. Using the Title 42 policy to return people to places where they face persecution and torture violates U.S. refugee law and treaty obligations as former and current U.S. government officials, federal courts, the United Nations High Commissioner for Refugees, the Inter-American Commission on Human Rights, the Special Rapporteur on the Human Rights of Migrants, and the Department of Homeland Security’s (DHS) Office for Civil Rights and Civil Liberties have all concluded. Members of Congress have repeatedly called on the Biden administration to end its use of Title 42 – a policy U.S. Senator Chuck Schumer has described as “a cynical effort by the Trump administration to use the pandemic as justification for expelling vulnerable migrants seeking refuge in this country.”
  2. Delivers Asylum Seekers to Brutal Human Rights Abuses. Title 42 has been used to carry out inhumane mass expulsions, delivering people to places where they are targeted for grave violence in Mexico and other countries they had fled. Human Rights First has tracked at least 8,705 reports of kidnappings, torture, sexual assaults, and other violent attacks against people blocked at ports of entry and/or expelled to Mexico due to the Title 42 policy since President Biden took office in January 2021. Asylum seekers expelled to their country of feared persecution have reported interrogations and persecution after these illegal returns in Haiti, Honduras, Nicaragua, and other countries.
  3. Spurs Disorder, Repeat Crossings, Inflated Numbers. The Biden administration’s use of the Title 42 policy is spurring disorder at the border. Expulsions drive repeat crossings and inflate the total number of border encounters. Reports by the DHS Office of Inspector General confirm that restrictions on asylum at ports of entry push asylum seekers to undertake crossings away from ports. Analysis of government data confirms that these policies drive, what have become increasingly deadly, crossings between ports for asylum seekers from Cuba and Haiti, who had previously overwhelmingly sought asylum at ports.
  4. Hurts Public Health and CDC Credibility. Epidemiologists, public health experts, and senior scientists from the Centers for Disease Control and Prevention (CDC) have repeatedly concluded that the Title 42 policy lacks a public health justification. These experts have stated that the CDC’s Title 42 orders “do[] not provide adequate public health justification for expelling asylum-seeking families at the border” and have stressed that instead “expulsions magnify the risks of Covid-19 transmission.” As Physician for Human Rights has noted, the Title 42 order “undermines the CDC’s credibility.” President Biden’s chief medical advisor, Dr. Anthony Fauci, has confirmed that immigrants are “absolutely not to blame” for the spread of COVID-19. Use of the Title 42 policy has become even more unjustifiable as other pandemic-related border restrictions have been eased.
  5. Harms Haitian and Other Black Asylum Seekers. The Title 42 policy has had a racially disparate impact on Haitian and other Black migrants and asylum seekers, as over 100 members of Congress wrote in a recent letter to the Biden administration. Since January 2021, at least 20,000 Haitian families and individuals, have been removed to increasing danger in Haiti many expelled under Title 42 without a chance to request asylum. Black people blocked in and expelled to Mexico under Title 42 have faced widespread anti-Black violence and discrimination. Sixty-one percent of Haitians who responded to a survey of asylum seekers in northern Mexico reported being the victim of crime while in Mexico, including rape, kidnapping, and robbery. Nearly 20 percent of Haitian asylum seekers reported being abused by Mexican police, including beatings, extortion, and threats.
  6. Benefits Cartels, Undermines Security. The misuse of Title 42 has been a financial boon to the cartels in Mexico that target people blocked in or expelled to Mexico. Organized criminal groups monitor and target people expelled or blocked from the United States, torturing and sexually assaulting abductees, demanding thousands of dollars in ransom from U.S. family members, and killing those who try to flee or whose families fail to pay. Title 42 expulsions undermine security along the border. CBP officials have concluded that rapid Title 42 expulsions have “negatively affected enforcement by reducing opportunities to gather intelligence,” and that they are therefore “unable to thoroughly interview individuals in custody.” In some border regions “organized crime has become so protective of the business they have made from the border closure that they have begun watching the ports of entry . . . and harassing migrants who attempt to be processed there.”
  7. Drives Family Separations. The Title 42 policy drives family separation as DHS returns family members alone to Haiti, Mexico, and other countries or to different parts of Mexico. Some desperate families expelled to Mexico under Title 42 have sent their children across the border alone to try to protect them from the cartels and corrupt officials who target stranded migrants in Mexico, resulting in thousands of unaccompanied children entering the United States with their family members.
  8. Bolsters Racist, Xenophobic Tropes. By defending and using this policy, the Biden administration has bolstered racist, xenophobic tropes that migrants are carriers of disease. With the DHS Secretary continuing to claim the Title 42 policy is a “public health imperative,” a barrage of alarmist pieces have appeared in far-right media claiming migrants threaten public health. In addition, politicians including Florida Governor Ron DeSantis and Texas Governor Greg Abbot have baselessly blamed COVID-19 surges on migrants. As public health experts have noted, “the Title 42 order stokes this rhetoric, putting current and future asylum seekers at risk.”
  9. Subverts Global Credibility, International Law. The Title 42 policy undermines U.S. credibility, global standing, and respect for international law, as the U.S. government asks other nations to welcome refugees while simultaneously turning away asylum seekers in violation of refugee law. This has been most recently illustrated by U.S. border officers turning away Ukrainian families fleeing the Russian invasion. In the United States, refugees and asylum seekers are less than one-half of one percent of the population. By contrast, in Turkey, which hosts the largest refugee population in the world, the proportion of refugees to the total population is ten times higher than the United States. In two weeks in February and March 2022, Poland took in more than 1.4 million Ukrainian refugees, which is about the same number of individuals encountered at the U.S. southern border in the entirety of fiscal year 2021. UNHCR estimates that Colombia, whose total population is less than one-sixth that of the United States, is hosting 2.4 million Venezuelans displaced abroad. More than 1.5 million refugees reside in Uganda making it one of the top five refugee-hosting countries.
  10. Caves to Fear Mongering, Rather than Managing Refugee Arrivals. The Biden administration has chosen to continue the Title 42 policy in the face of predictable fearmongering about the number of individuals arriving at the southern border, caving to false and dangerous rhetoric of “invasion” rather than upholding the law and standing up for refugees. The United States has capacity to manage arrivals of people seeking refuge. The number of people encountered at the southern border (i.e. not counting repeat crossings caused by Title 42 expulsions) has declined by 29 percent since August 2021 (from 156,000 to 111,000 in January 2022). And southern border ports of entry continue to process only a small and now declining number of inadmissible individuals, including asylum seekers. Since August 2021, processing at southern border ports has dropped by 47 percent (from 13,326 to 6,999 in January 2022). These numbers remain well below monthly processing during the Obama administration when CBP processed 20,524 people at southern border ports of entry in October 2016, for example. U.S. ports of entry have subsequently received significant funding to upgrade and expand capacity (both in infrastructure and staffing) but have consistently processed far fewer individuals.

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Fact Sheets

Author:

  • Julia Neusner
  • Kennji Kizuka

Published on March 11, 2022

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