The work of the Kino Border Initiative has never been more important to promote the ideal that we can be a country that welcomes the stranger. We bear witness to migrants fleeing conflict, violence, human rights abuses, persecution and climate-related disasters day in, day out at our Migrant Outreach Center in Nogales, Sonora, Mexico. Yet, when these individuals arrive at the border they are refused entry. They are denied their universal human right to asylum. If they manage to cross the border they are apprehended, detained, rapidly expelled from the U.S., and returned to dangerous situations. The U.S.- once a global leader in refugee resettlement and protection– has a great task ahead of itself; one, to restore asylum and recommit to its promise to uphold Protocols and protections for asylum seekers outlined in the 1951 Convention relating to the Status of Refugees; and two, reverse the Trump-era legacy of systematic attacks to asylum laws spurred on by anti-immigrant sentiments. Our featured story this month focuses on one obscure U.S. code, Title 42, that is part of U.S. health law and its dangerous ramifications on the thousands of migrants awaiting asylum. But first we must understand how we got here.
On June 20, 2021, President Joseph Biden released a statement on World Refugee Day. The international holiday was established in 2001 to commemorate the 50th anniversary of the 1951 Convention relating to the Status of Refugees and to honor refugees and displaced people all around the world. This year marks the 70th anniversary of the Convention, which the U.S. is still party to. He began his statement by recalling America’s history of being a nation founded by people fleeing religious persecution, and ended by saying; “The United States is proud to stand as a beacon of liberty and refuge to the world, and whether it’s taking in those seeking safety or providing more humanitarian relief than any other nation, we’re going to do our part.” Yet, these words come at a time where it has never been more difficult to gain entry into the United States to seek asylum.
The U.N. first defined the term “refugee” in the 1951 Convention in the aftermath of World War II, which displaced at least 60 million people. These laws are grounded in Article 14 of the Universal Declaration of Human Rights, which recognizes the rights of a person who is “unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion”. Importantly, the Refugee Convention contains various safeguards against expulsions of refugees based on the principle of non-refoulement. According to the Protocol, “no one shall expel or return (“refouler”) a refugee against his or her will, in any manner whatsoever, to a territory where he or she fears threats to life or freedom.” The U.S. signing the U.N. ‘s refugee protocol in 1967, was one of the first steps in the evolution of the U.S. ‘s “complicated” history of asylum and refugee policy. Although the Biden-Harris Administration has been vocal about their commitment to “welcoming immigrants in our communities” and “reasserting America’s commitment to asylum-seekers and refugees”- the U.S. currently remains in breach of their international obligations to offer protection to refugees and does not have any concrete plans to abide by these commitments anytime soon.
President Biden himself stated in his World Refugee Day statement, it is “not enough to simply reverse or dismantle the heartless policies of the Trump Administration. We need to look for ways to do better.” Regrettably, his Administration still enforces many of these same policies and practices. Seven days after said statement, the White House released their 21-point-blueprint for a “fair, orderly and humane” immigration system. While the plan seeks to roll-back many of his predecessor’s “irrational and inhumane policies”, the White House does not provide a timeline of when the changes would be implemented and continues to enforce Trump-era restrictions such as Title 42. This provision is one of the many sweeping regulations passed during the Trump Administration’s tenure to permanently disable and undermine asylum protection.
Associate Professor of Law, Director of Immigration & Human Rights Clinic at the University of the District of Columbia- David A. Clarke School of Law, Lindsay M. Harris, outlines the various ways the Trump Administration systematically attacked the U.S. asylum system for four years. In her 2021 article entitled, “Asylum Under Attack: Restoring Asylum Protections in the United States”, she broadly categorizes these attacks into six categories:
Border Policies Constricting Access to Asylum, including “metering,” family separation and the zero tolerance policy, Migrant Protection Protocols, Prompt Asylum Claim Review and Humanitarian Asylum Review Process, and Asylum Cooperative Agreements with Guatemala, Honduras, and El Salvador;
Co-opting the COVID-19 public health crisis to ban migrants and seekers at the Southern Border and beyond, through COVID-Ban and Title 42 expulsions;
Asylum “Bans” 1.0 (barring asylum seekers entering between ports of entry) and 2.0 (transit through a third country);
Attorney General Decisions Changing Asylum Law to curtail due process for asylum seekers, increasingly detain asylum seekers, and deny asylum protection to individuals fleeing gender and gang-related violence;
Bureaucratic shifts including charging a fee for asylum, restrictions on work authorization, and technical rejections of asylum applications;
Sweeping and comprehensive “Death to Asylum” regulations proposed and finalized in 2020, along with six other sets of regulations proposed in less than six months targeting due process and the immigration appellate system.
Set against this backdrop, we examine Title 42, the pandemic policy that bars migrants from entering the United States under the guise of public health and safety; and perhaps one of the most egregious examples of the medical scapegoating of immigrants we have seen in U.S. history.
WHAT IS TITLE 42 AND HOW HAS IT BEEN IMPLEMENTED AT THE BORDER?
In March 2020, when the pandemic escalated globally, the Trump administration used COVID-19 as a pretext to effectively close the US border blocking nearly all asylum seekers searching for safety using Title 42. Title 42 is an old and obscure public health policy (the Public Health Service Act of 1944) that prohibits entry when the Director of Disease Control believes “there is a serious danger to the introduction of [a communicable] disease into the United States.” Based on an unprecedented interpretation of the 1944 act, the U.S. is able to deny entry to anyone except U.S. citizens, lawful permanent residents, and military personnel who arrive at a port of entry with valid travel documents. The rule allows U.S. Customs and Border Protection (CBP) to implement and enforce this order, including expelling individuals who arrived at the U.S.-Mexico border, without giving them the opportunity to seek asylum.
Public health experts state that expelling refugees protects no one. Reporting has shown that CDC scientists were pressured by the Trump administration and DHS to invoke Title 42 to achieve their goal of shutting down the border. Experts and advocates have discredited the public health rationale as a basis for the policy and instead draw attention to the fallacy and hypocrisy of this provision that subjects hundreds of thousands of migrants to expulsions, meanwhile granting unrestricted travel for people with documents across international borders.
HOW DOES TITLE 42 AFFECT ASYLUM SEEKERS AT THE BORDER?
“On the border between the U.S. and Mexico, U.S. officials are rejecting people who have experienced persecution and violence without giving them a chance to make their case…To reject asylum seekers is to hand them a death sentence.”– Josue [not real name], an asylum seeker from southern Mexico and one the migrant organizers for #SaveAsylum.
Last year, thousands of asylum seekers made the dangerous journey to the border only to be turned away by immigration authorities or expelled without providing migrants an opportunity to seek protection in the United States. CNN reports that since Title 42’s implementation, more than “940,000 migrants have been swiftly expelled at the southern border”. These staggering statistics correlate with the record breaking summer we’ve seen in terms of migration to the southern border. CBP reports that July broke a 21-year record of migrants detained at the Mexico border. Here at our Migrant Aid Shelter, we saw a 136% increase of meals served to migrants (June we served 17,708 meals and in July 41,832). Most of the new migrants and families arriving at our shelter are seeking asylum after being forced to flee their homes due to extreme violence. KBI hears first-hand the challenges migrants face. Our Education and Advocacy team works consistently to push for policy solutions and to demand action. We understand that it is most often the migrants themselves who are the most powerful advocates.
On July 28th the #SaveAsylum Coalition held a migrant-led press conference to commemorate the 70th anniversary of the 1951 Refugee Convention. The event followed the Biden Administration’s recent renewal of Title 42, which extended border closure until August 21st. Since the press conference, the administration has now indefinitely extended the deadline until the CDC decided it is “no longer a threat to public health.” Asylum seekers waiting in Nogales, Sonora spoke to the press about the damaging toll Title 42 has had on their lives. Currently individuals seeking asylum in the U.S. are turned away and forced to wait in Mexico.
One of the migrant organizers, Eleuteria Ibarra, shared her experience about the dangerous wait at the border. “Honestly, our experience living at the border, waiting for the border to reopen, was terrible. My husband and son were threatened, robbed, and extorted, And the truth is, every day we felt fear, uncertainty, among other things we experienced in Nogales.” Thankfully Eleuteria and her family were processed and are now reunited with their relatives in Ohio, where her asylum case is currently pending.
The migrant leaders reminded audiences that the U.S. is in violation of both domestic and international laws. As Josue [not real name] points out, “Leaders in the United States joined the Convention Relating to the Status of Refugees, and said that they would never again reject people fleeing from persecution and arriving at the doorstep of their country. Unfortunately, today we see that officials in the U.S. are not acting in accordance with this commitment.”
WHY SHOULD TITLE 42 END?
“We need you to stop removing people to Mexico under Title 42, to stop forcing migrants seeking asylum to wait in order to access their rights.”– Suyapa, an asylum seeker who was returned to Mexico three times under Title 42.
On August 12, 2021 Secretary of Homeland Security, Alejandro N. Mayorkas, delivered a speech addressing dire conditions at the border and the Biden Administration’s efforts to “build a fair, orderly, and humane immigration system.” The speech is far cry from any real humane reform and in turn signals a doubling down on expedited removals and expulsions, meanwhile upholding Title 42 indefinitely. The next day, the #WelcomeWithDignity Campaign released a joint-letter to the Biden Administration regarding Secretary Mayorkas’s remarks and plans to increase expulsion flights to southern Mexico and changes to asylum processing. Kino Border Initiative is one of the 102 signatory organizations. The joint statement concludes-
Your administration has the responsibility to restore the U.S. immigration system and uphold U.S. refugee law and treaty obligations. The administration’s recent actions highlighted above are in direct contravention of the goal to repair the broken immigration system you inherited. We urge your administration to immediately change course and reaffirm the U.S.’s commitment to protecting people fleeing persecution and allow families and adults their legal right to seek asylum in the U.S.