Failure to Protect: Biden Administration Continues Illegal Trump Policy to Block and Expel Asylum Seekers to Danger

For more than a year, the U.S. government has misused public health authority to expel and block families, adults, and children seeking refuge at the southern border. Under pressure from Trump administration officials, the Centers for Disease Control and Prevention (CDC) disregarded objections of its own senior experts and issued an order under Title 42 of the U.S. Code that is being used by the Department of Homeland Security (DHS) to evade U.S. refugee law – allegedly for the purpose of combating COVID-19. This expulsion policy – which the Biden administration has failed to end – prevents refugees from requesting U.S. asylum at the border. Illegal, immoral, and unneeded to protect public health, the expulsion policy has sparked a chorus of condemnation from public health experts, legal scholars, former government officials, and members of Congress.

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, including Black and LGBTQ refugees forced to endure bias-motivated violence in Mexico. The policy also creates disorder and pushes asylum seekers to cross into the United States between ports of entry. Rather than protecting public health, the expulsion policy threatens the health and safety of asylum seekers and migrants.

Under this policy, DHS is preventing asylum seekers from approaching U.S. ports of entry to seek protection and expelling those who cross the border elsewhere, sending them either to the countries they fled or to dangerous border regions in Mexico. To its credit, the Biden administration has brought to safety more than 6,000 of the asylum seekers whom the Trump administration forced to wait indefinitely in Mexico under the Migrant Protection Protocols (MPP), also known as the “Remain in Mexico” policy. At the same time, however, the Biden administration is misusing Title 42 and turning away people seeking protection to those same life-threatening dangers. Human Rights First has tracked at least 492 attacks and kidnappings suffered by asylum seekers turned away or stranded in Mexico since President Biden took office in January 2021.

By sending asylum seekers back to danger without asylum assessments, the administration fails to protect refugees and blatantly violates U.S. refugee laws and treaties – doing so as the world marks the 70th Anniversary of the 1951 Refugee Convention, part of the global system the United States helped build to ensure refugees are not turned away to persecution.

The Biden administration has blocked and expelled asylum-seeking families and adults from Burkina Faso, Cameroon, Cuba, El Salvador, Ethiopia, Ghana, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Nigeria, Russia, Somalia, Venezuela, and Yemen. African, Caribbean, and other Black asylum seekers and migrants have been left particularly vulnerable by this policy, suffering anti-Black violence and discrimination while stranded at the border for months or even years. Since February 2021, the U.S. government has sent 27 airplanes with over 1,400 Haitian adults and children, including asylum seekers, directly back to Haiti despite escalating political instability and violence.

While unaccompanied children were exempted from the policy under both the Trump and Biden administrations in the wake of public outcry and a federal court ruling, its continued use for adults and families has prompted desperate families to send children alone to escape violence, threats, human trafficking, and other dangers. Mexico’s refusal in some border regions to take back families with children younger than seven years old has prevented the illegal expulsion of many families. But Customs and Border Protection (CBP) has held other families in horrible conditions and treated them cruelly before transporting them great distances to expel them to other regions of Mexico.

The Biden administration has suggested it is using this expulsion policy to buy time to put in place a comprehensive process and achieve other legislative objectives. These justifications are neither a proper use of public health authority nor valid reasons for violating asylum laws that save lives. To be sure, the Biden administration faces added challenges due to the Trump administration’s damage to asylum and immigration capacities. Three months after President Biden took office, however, the United States can – and must – swiftly restore asylum, employ safeguards recommended by public health experts, and simultaneously work to upgrade processes and capacities. Sacrificing adherence to U.S. refugee law and adopting a Trump-administration policy that treats human lives as dispensable are not the answer.

For this report, Human Rights First researchers conducted in person and remote interviews with asylum seekers, immigration attorneys, academic researchers, humanitarian staff, and legal monitors. In March and April 2021, a Human Rights First researcher, with assistance from Al Otro Lado, conducted in-person interviews in Tijuana with more than 110 asylum seekers, including some identified by Haitian Bridge Alliance, which also facilitated interpretation in Haitian Creole. Other interviews were conducted in Arabic, English, French, and Spanish. The report includes data from an electronic survey of over 1,200 asylum seekers in the Mexican state of Baja California conducted by Al Otro Lado in February through early April 2021, as well as information drawn from U.S. and Mexican government data, media, and human rights reports.

This report builds on prior reporting by Human Rights First in May 2020 and December 2020, by Haitian Bridge Alliance, Instituto para las Mujeres en la Migración, and Center for Gender & Refugee Studies in January 2021, and by Haitian Bridge Alliance, UndocuBlack Network, and Quixote Center in March 2021.