Extending Title 42 Would Escalate Dangers, Exacerbate Disorder, and Magnify Discrimination

In April 2022, the Centers for Disease Control and Prevention (CDC) determined that as of May 23, 2022, it would terminate the Title 42 order, which the Department of Homeland Security (DHS) has for more than two years used to illegally block and expel to danger people requesting asylum at the southern U.S. border. Yet now, some members of Congress are seeking to force the administration to keep the Title 42 policy in place to deter people fleeing for their lives from attempting to seek refuge at the U.S. border—effectively abandoning the pretense that the policy was, or is, a public health measure. The administration should follow through on plans to restore asylum and should heed the recommendations of humanitarian, human rights, and legal services organizations to build a more humane, timely, and accurate asylum system.

The Title 42 policy was never justified as a public health measure. Senior CDC experts objected to the policy from its inception. Epidemiologists and medical experts have repeatedly confirmed that the Title 42 policy undermines public health responses to COVID-19 and that the pandemic, including emerging variants, can be addressed through existing precautions, such as offering vaccinations, testing, masking, and avoiding the use of congregate detention. In its April 2022 order, the CDC acknowledged that the Title 42 policy is not needed given “numerous tools for disease prevention, mitigation, and treatment which have become available over the past two years.”

Customs and Border Protection (CBP) continues to deny requests for asylum and humanitarian processing at southern border ports of entry and to use Title 42 to expel people to grave danger in Mexico who cross the border in search of refuge. Since taking office, the Biden administration has returned nearly 22,000 Haitian families and adults, including many asylum seekers expelled under Title 42, to escalating violence and political turmoil in Haiti, despite designating Haitians in the United States for Temporary Protected Status due to the “deteriorating political crisis, violence, and a staggering increase in human rights abuses.” Expulsion flights also continue to return asylum seekers directly to the dangers they fled in El Salvador, Guatemala, Honduras and other countries without an opportunity to apply for U.S. asylum.

The welcome recent processing at the southern border of thousands of people fleeing Ukraine and Russia through exemptions to Title 42 has demonstrated that—with the political will—the U.S. government has the capacity to process asylum seekers, including at ports of entry. Yet, at the same time DHS took some steps to restore and ramp up asylum and humanitarian processing for individuals from Europe, asylum seekers from Africa, the Americas, the Caribbean and elsewhere—many of whom have been waiting in danger in Mexico for years for an opportunity to exercise the right to seek asylum under U.S. law and treaty obligations—continue to be blocked under Title 42. This discriminatory double standard must be rectified by restoring asylum and upholding refugee law for all people seeking asylum—without discrimination as to race, religion, or nationality—rather than shifting to deny entry to Ukrainian refugees under Title 42.

Extending the Title 42 policy would be a disastrous mistake. Every day that the policy continues to be used, more refugees will be sent to life-threatening dangers—in violation of the D.C. Circuit Court of Appeals ruling that the U.S. government “cannot expel [asylum seekers] to places where they will be persecuted or tortured” under Title 42. In an April 2022 interview, former senior State Department legal advisor Harold Koh again confirmed that the Title 42 policy is “illegal.” The proponents of extending Title 42 are pushing the administration to continue to ignore and violate U.S. immigration and refugee law at the border, a counterproductive approach that—as is well documented now—has caused repeat crossings, inflated border statistics, and undermined security at the border. Prolonging the use of Title 42 will spur yet more disorder—as asylum seekers are pushed to deadly crossings of the border between ports in search of refuge—and magnify the already immense discriminatory harm of this policy on people seeking asylum at the border, who are overwhelming Black, Brown, and Indigenous.

This research update on Title 42 focuses on refugees blocked from U.S. asylum and stranded in danger in the Tijuana area. Its key findings include:

• The devastating human rights travesty of the Title 42 policy continues to mount. Human Rights First has now tracked at least 10,250 reports of murder, kidnapping, rape, torture and other violent attacks against migrants and asylum seekers blocked in or expelled to Mexico due to Title 42 since the Biden administration took office. Recent attacks include: a lesbian asylum seeker from El Salvador raped after being expelled to Mexico under Title 42; a Haitian asylum seeker attacked with a bat and subjected to racist abuse after DHS used Title 42 to expel him and his family to Mexico; a transman from Honduras and his girlfriend blocked from requesting asylum due to Title 42 who were raped by men who said they were “going to teach them how to be women;” and a Nicaraguan woman kidnapped with her four-year-old child and raped, who remain stranded in danger in Mexico.
• DHS continues to use Title 42 to discriminatorily block primarily Black, Brown, and Indigenous people from seeking asylum at ports of entry, including asylum seekers from Africa, Central America, and Haiti as well as many LGBTQ people. At the same time, government data shows that the 135 percent increase in processing of inadmissible individuals, including asylum seekers, at San Diego ports of entry in March 2022 was made up entirely by the increase in Ukrainian and Russian nationals at those ports.
• People blocked from protection at ports of entry due to Title 42 and stranded in Tijuana include asylum seekers from Cameroon, Côte d’Ivoire, El Salvador, Guatemala, Ghana, Haiti, Honduras, Mali, Mexico, Mauritania, Nigeria, and Somalia. They include Haitians fleeing political and gender-based persecution, Indigenous Honduran human rights defenders, and Mexican families fleeing brutal cartels that executed their family members. These asylum-seeking adults and families often face dire conditions in Tijuana while blocked from U.S. asylum—without adequate or safe housing and unable to access urgent medical care, often because of discrimination based on their race and nationality.
• Asylum seekers blocked from ports of entry due to Title 42 and facing imminent threats and medical emergencies continue to be denied humanitarian exemptions by CBP. Those recently denied exemptions to the Title 42 order include: a Nigerian man with glaucoma and hand tremors who was beaten by police in Mexico; a gay Venezuelan man living with HIV who is partially deaf; a Mexican woman fleeing threats by a cartel who murdered the woman’s husband and whose 12-year-old son has a pacemaker and urgently needs specialized medical treatment; and a 14-year-old with a traumatic brain injury he incurred from falling from a two-story building to escape kidnappers.

This report is based on interviews with 29 asylum seekers in late March and early April 2022 conducted by a Human Rights First researchers with interpretation and other assistance from Haitian Bridge Alliance staff; additional information from legal services and humanitarian aid providers; observations of asylum processing outside the San Ysidro port of entry by Human Rights First and legal monitors from Al Otro Lado; reports of attacks drawn from an ongoing survey of asylum seekers in Mexico conducted by Al Otro Lado; review of U.S. government data; as well as media and other human rights reporting.

The report updates prior research on the Title 42 policy by Human Rights First in March 2022, February 2022, January 2022, December 2021, November 2021 (with Florence Immigrant and Refugee Rights Project), October 2021, August 2021, July 2021 (with Hope Border Institute), June 2021, May 2021 (with RAICES and Interfaith Welcome Coalition), April 2021 (with Al Otro Lado and Haitian Bridge Alliance), December 2020, and May 2020.