The Biden Administration is facing increased pressure to end a Trump-era immigration policy that blocks many asylum seekers from entering the United States.
A year ago this month, the Centers for Disease Control and Prevention directed immigration officials to end all nonessential travel on the southern border, citing an obscure 1944 provision of U.S. law, known generally as Title 42, which governs health and safety regulations. The decades-old statute was dusted off by the Trump administration as part of an effort to contain the spread of COVID-19.
But many immigration attorneys say the law is instead being used as an excuse to keep out asylum seekers while U.S. citizens still regularly travel between Mexico and the United States.
“Using [Title 42] in this particular way to kind of systematically dismantle or to create a complete stopper on asylum seekers at the border is completely unparalleled,” said Alexandra Miller, a lead attorney at the Florence Project, an immigrant justice organization based in Arizona. “Asylum seekers have been very specifically picked out.”
Last week, Homeland Security Secretary Alejandro Mayorkas released a statement describing the situation on the Southwest border, maintaining that Title 42 expulsions are a necessary part of managing the ongoing pandemic.
But a growing chorus of immigration attorneys are asking the federal government to end the practice. Last month, the American Civil Liberties Union of Massachusetts filed a lawsuit against the federal government over the expulsion of seven asylum seekers, four of whom are children.
The complaint, filed in Massachusetts District Court, details the case of a 16-year-old girl who fled Guatemala alone, trying to reach her family members in Massachusetts. The perilous journey north ended in a brief moment of relief when the teenager arrived at the U.S. border, the complaint says, but the relief was short-lived.
“[She] was held, detained for a few days, and then put on a plane and sent back to Guatemala,” said Adriana Lafaille, an ACLU staff attorney who is helping represent the migrants. “We’re sending her directly back into the circumstances that she fled without any inquiry into whether that is safe for her.”
The U.S. Attorney's Office for the District of Massachusetts declined to comment on the case.
Jessica Vaughan is the director of policy studies for the Center for Immigration Studies, a conservative D.C.-based think tank that advocates for limited immigration.
“To me it's very obvious and I think to most Americans it's very obvious, that the president needs the authority to stop the entry of people on the southern border in order to prevent the spread of public health threats,” Vaughan said. “The best way to try to control the pandemic is to try to control the movement of people.”
Federal law requires border officials to refer a migrant who expresses fear of returning home to an asylum officer, who then conducts an interview to determine if the migrant has a credible fear of returning to their home country.Under President Donald Trump, the government raised the standard of proof for passing that asylum screening interview, but a Customs and Border Patrol officer still cannot decline a migrant the chance at an asylum interview. It is the asylum officer who is supposed to determine if the migrant’s fears of returning home are legitimate.
But immigration attorneys like Lafaille and Miller say Title 42 has all but dismantled the American asylum process. And the consequences of sending people back to their home countries can be dire.
An advocacy group called Human Rights First connected GBH News to a woman and her family who had been expelled from the U.S. in June under Title 42 after fleeing their native Nicaragua in fear for their lives.
“It was a disaster,” the woman said in Spanish between tears on a phone call from a hostel in Tijuana. “We begged, we begged, 'No, no, we can't go back"’
The woman asked to remain anonymous because of fear of retaliation from the U.S. government.
She says that she, her husband and her then seven-year-old daughter had been persecuted for participating in a peaceful protest against the ruling government. Nicaraguan officials raided their apartment, she says, and beat them in their own living room.
They saved enough money to bribe a government official into allowing them to leave Nicaragua.
Like the Guatemalan teen in the ACLU’s case, crossing the border gave the family a fleeting moment of hope and safety, she says. But the family was quickly captured and detained by border officials in June.
The family was sent to an Immigration and Customs Enforcement detention center in Karnes City, southeast of San Antonio. They were told they’d spend a 14-day quarantine at the Karnes City detention center, then they would receive an audience with a lawyer, and later have the chance to present their case before a judge.
Instead, six days later, they were put into an unmarked van, driven to the airport, and then deported. The family landed in a remote city that they did not recognize, and shortly after were arrested and beaten again by Nicaraguan officials, she says.
Customs and Border Protection declined to comment on the Nicaraguan family’s expulsion, stating that they could not comment on individual cases for privacy reasons.
But the Nicaraguan mother says immigration officials didn’t believe their story and told them they couldn’t ask for political asylum.
Stories like that baffle and anger attorneys like Miller.
“If you were even to assume that Title 42 had some kind of underlying public health justification, that justification goes out the window once they're detained because they're in a congregate setting,” said Miller. “We have clients who have gotten COVID in detention, while being subjected to Title 42.”
There is no publicly available data on how Title 42 cases are being handled.
Last week, a team of immigrant advocates scattered across the county, including National Immigration Litigation Alliance, Al Otro Lado and Haitian Bridge Alliance filed a public records request seeking policies and guidelines that explain how the most vulnerable migrants, like pregnant women, new mothers and infants, are handled in federal custody.
President Joe Biden, in a press conference Thursday, said his administration is currently in talks with Mexican President Andrés Manuel López Obrador, to allow more migrants to be expelled to Mexico. “We're sending back the vast majority of the families that are coming,” he said.
Biden said that the United States is attempting to build a humane and safe system to process migrants at the border, and in the meantime, families would continue to be turned away.
“They should all be going back, all be going back,” the president said. “The only people we're not going to let sitting there on the other side of the Rio Grande by themselves with no help are children.”
Ava Sasani is an intern with the GBH News Center for Investigative Reporting.
