Originally Published in The Intercept
Ryan Devereaux - April 21, 2021
Human rights organizations and border researchers are calling on the White House to end its use of a sweeping Trump-era law.
PRESSURE IS MOUNTING on the Biden administration to end its use of a Trump-era law that stifles asylum access at the southern border, as new evidence points to human rights abuses and violence against individuals and families seeking refuge across the U.S.-Mexico divide. A joint human rights report published Tuesday, based on more than 110 in-person interviews and an electronic survey of more than 1,200 asylum-seekers in the Mexican state of Baja California, documented at least 492 cases of attacks or kidnappings targeting asylum-seekers expelled under a disputed public health law, known as Title 42, since President Joe Biden’s January inauguration.
The victims of violence represented 17 nationalities, from Latin America and the Caribbean to Africa and the Middle East, and described cases of assault, kidnapping, and rape in northern Mexico border towns in recent months. Black asylum-seekers, in particular, stood out as targets, with more than 60 percent of Haitian asylum-seekers in Baja reporting that they were the victims of crimes. Out of a sample of more than 150 asylum-seekers interviewed between March and April, the researchers found that none were given an opportunity to apply for asylum before being summarily expelled from the U.S.
“Despite his frequent pledges to reverse President Trump’s cruelty at the border, President Biden is continuing a policy that is wreaking havoc: it endangers children, drives family separations, and illegally returns asylum seekers to danger,” said advocates with Human Rights First, Al Otro Lado, and Haitian Bridge Alliance. While acknowledging that the administration inherited an asylum system that was decimated by Donald Trump, the report argued that those challenges do not excuse the deplorable and deteriorating conditions asylum-seekers continue to face: “Sacrificing adherence to U.S. refugee law and adopting a Trump-administration policy that treats human lives as dispensable are not the answer.”
Pressed by Trump immigration adviser Stephen Miller over the objections of public health professionals, Title 42 — an obscure Centers for Disease Control and Prevention law from the 1940s — went into effect last spring with the onset of the coronavirus pandemic. According to the administrations of both Trump and Biden, the law allows Border Patrol agents to swiftly expel individuals and families encountered on U.S. soil without a hearing, regardless of whether they are attempting to exercise their right to seek asylum, while also broadly barring asylum access for most people at ports of entry.
Customs and Border Protection, the agency that oversees the Border Patrol, has carried out more than 630,000 expulsions in the past year. As The Intercept detailed in an investigation published last weekend, Border Patrol agents have used Title 42 as a basis to drop asylum-seekers in Mexican border towns in the middle of the night — a practice that’s been largely prohibited for years under agreements between the U.S. and Mexico. The agents have also relied on Title 42 to expel individuals and families through remote ports that were previously not used for removals, into communities dominated by organized crime and without transportation services. The law is under challenge in the courts, with critics arguing that what’s been presented as a public health measure is in fact being used as a means to deny people their rights under domestic and international law. Hundreds of thousands of travelers continue to pass through the nation’s ports every day; it’s asylum-seekers — and virtually asylum-seekers alone — who are rebuffed at those locations.
“Our staff and our volunteers have increasingly received reports from asylum-seekers whose family members or themselves have been kidnapped by organized crime and held for ransom.”
“In Tijuana, under Title 42, our staff and our volunteers have increasingly received reports from asylum-seekers whose family members or themselves have been kidnapped by organized crime and held for ransom,” Nicole Ramos, director of Al Otro Lado’s Border Rights Project, told reporters in a press call Tuesday. “Our staff receives videos of asylum-seekers with guns pointed at their head, children held over the mouths of barking dogs, all being threatened that if their families do not pay the $5,000, the $10,000, they will be killed and the parts of their bodies scattered, never to be recuperated or identified.”
Ramos added that while the U.S. reportedly stopped the practice of expelling unaccompanied children in November — after the Trump administration carried out at least 13,000 such expulsions — that halt has not applied to unaccompanied Mexican children. “They’re still turning back the Mexican minors in much the same way that we’ve seen previously,” she said. Nicole Phillips, legal director at Haitian Bridge Alliance, said on the call: “It feels like Stephen Miller is still here.” In addition to expulsions into Mexico, Title 42 has been used to send 27 flights to Haiti since February, the report noted, unloading more than 1,400 adults, children and asylum-seekers into violently unstable conditions in which Department of Homeland Security officials have privately acknowledged they “may face harm.”
“This particularly cruel right now because of the state Haiti is in,” Phillips said. “There’s a political instability like Haiti has not seen since the 1980s under the Duvalier regime.”
Muhamed, an asylum-seeker from East Africa who arrived in Tijuana with his family one month before Title 42 began and was just granted entry into the U.S. this month, described what it is like to be a Black asylum-seeker in a foreign city where violent and extortionist targeting of migrants is entrenched. “Apart from the racism of the society, the police extortion was also a very huge challenge to us,” he said, adding that he was extorted by police on three separate occasions. Earlier this year, Muhamed began volunteering at a camp for asylum-seekers hoping for an opportunity to make their case in the U.S. “These people are not criminals,” he said. “They are migrants. They are human beings who are sleeping on the streets under the sun and rain, just to fulfill their dream of seeking asylum in the United States of America.”
The implementation of Title 42 is creating a new vocabulary of immigration enforcement. Alexandra Miller, managing attorney of the Border Action Team at the Florence Immigrant and Refugee Rights Project in Arizona, told reporters of the emergence of what advocates are calling “delayed Title 42”: cases where Title 42 is used to expel individuals in ICE detention in the interior of the U.S., not at the border. “Over the past five months, on any given day, there’s been around 100 individuals in ICE custody, who will not have access to due process, who will have limited access to counsel, and who will ultimately be removed to their country of origin, despite asserting fear claims,” Miller said. Marisa Limón Garza, deputy director of the Hope Border Institute in El Paso, Texas, described the challenge of responding to “lateral flights”: operations in which individuals and families are flown to El Paso and booted across the bridge into Ciudad Juárez, a city that has earned an infamous reputation for violence and targeting of migrants.
Limón said that while advocates in the region have contended with Title 42 for more than a year, conditions have worsened in the past two months, with nearly 5,000 men, women, and children flown to the border cities and expelled. Typically, flights arrive carrying 135 passengers, she explained, U.S. officials choose 35 individuals to stay, and the rest are sent to Juárez. Embedded in the process is what advocates are calling “the borderlands betrayal,” wherein families are told they are being flown to another U.S. city, only to be expelled into Mexico.
“Unfortunately, we don’t have the benefit of waiting. Every day is another 100 people. Every day is another family.”
“We have hundreds of empty beds right now ready to welcome people. We know that our partners in South Texas also have beds ready to receive people,”Limón said. “And yet the United States government continues to apply the use of Title 42 incorrectly, inappropriately at all of our collective expense.” Limón added that she and her colleagues have called on the administration to end its use of Title 42 and that the response they continually receive is to wait. “Unfortunately, we don’t have the benefit of waiting,” she said. “Every day is another 100 people. Every day is another family. Every day is another person that is attempting to cross between ports of entry because we have cut off asylum at our southern border.”
THE HUMAN RIGHTS report comes just one day after a binational coalition of 92 Mexican and U.S academics who study the border issued a series of recommendations to the governments of their respective countries in order to “avoid a humanitarian crisis.” At the top of the researchers’ list was the phaseout of Title 42 and the beginning of processing for families seeking asylum. The signatories, which included many of the region’s top experts, noted a pattern that’s emerged in recent weeks of families choosing to separate themselves upon learning that the U.S. is still accepting unaccompanied children. Allowing families to seek asylum together “will decrease the need for facilities dedicated to unaccompanied minors, as families are able to travel to their final destinations upon release and require less immediate support” following their initial interview in the asylum process, they argued.
The border and immigration scholars advocated for expanded use of so-called filter locations, such as hotels, as a measure to prevent the spread of Covid-19. “The creation of ‘filters’ and the ‘filter hotel’ have proven to be efficient venues for the control of the pandemic prior to transferring migrants to other spaces such as shelters where they receive support,” they noted. “However, it is important to increase capacity, both in terms of the number of spaces and in the application of PCR tests,” they wrote, referring to testing for Covid-19. The researchers added that filter locations could be used to administer one-shot vaccines and said that “more dignified holding conditions should be built for unaccompanied children, adolescents, and families on the US side while they are processed and transferred to their final destination.”
Responsible and coronavirus-conscious admission of asylum-seekers is not without precedent, the experts said, pointing to the recent admission of individuals who were enrolled in the Trump administration’s “Remain in Mexico” program as an “orderly, efficient and safe” model of success. The Trump-era program forced more than 71,000 asylum-seekers to wait out their cases in Mexico, triggering an explosion in violence and human rights abuses against those populations. Biden ended the notorious program on his first day in office, and his administration has moved forward with the phased entry of individuals formerly enrolled in the system.
One thing the governments of the U.S. and Mexico should stop doing, the border and immigration researchers argued, is relying on Mexican security forces, with their long and well-established record of human rights abuses and corruption, to interdict asylum-seekers making their way north. Just two days after Biden’s inauguration, a U.S.-trained Mexican special operations team massacred 19 migrants in northern Mexico; last month, a Mexican soldier shot and killed an unarmed Guatemalan migrant in southern Mexico. Less than two weeks later, the Biden administration announced that it had secured agreements with the governments of Mexico, Honduras, and Guatemala to deploy thousands of troops to their respective borders.
“There is a strong correlation between violence against migrants in the form of kidnapping, extortion and even massacres with increased immigration enforcement in Mexico,” the researchers said. “Mass detention will drive people to hide in dangerous and risky conditions, which will cause greater humanitarian costs.”