Rhetoric vs Reality: End Dangerous Narratives and Failed Policies, Restore Asylum at Ports of Entry

During the summer of 2022, in the wake of a court order continuing the Title 42 policy, asylum seekers remain blocked from seeking asylum at U.S. ports of entry along the southern border – despite the clear requirements of U.S. refugee law. Unable to seek asylum at ports of entry and stranded in danger in Mexico, some families and adults are pushed to undertake increasingly deadly border crossings between ports of entry to seek refuge in the United States. Many are fleeing countries plagued by escalating repression, and violence, and large numbers have also sought refuge in other countries such as Colombia, Costa Rica, and Mexico. Title 42 is a failed attempt at border policy that has also spurred repeat crossings by other migrants who have been repeatedly expelled under the policy which evades actual immigration law; these repeat entries have in turn led to inflated border statistics.

Rather than insisting on restoration of immigration and refugee law and an end to the counterproductive Title 42 policy, some politicians and pundits are using video of these arrivals – including at Del Rio, Texas and Yuma, Arizona – or visits to the border to falsely paint arrivals as an “invasion,” stoking the “great replacement” conspiracy theory that has fueled extremist attacks. Following an escalation in this dangerous rhetoric, Governor Greg Abbott of Texas issued an order on July 7, 2022 purporting to authorize Texas police and National Guard troops to “return” asylum seekers and other migrants to ports of entry. Some members of Congress are attempting to force further continuation of Title 42 – a recipe for more suffering and crossings outside ports of entry.

Instead of pushing dangerous narratives and policies that cause disorder, U.S. officials should take steps to ensure swift restoration of asylum at U.S. ports of entry and an end to the counterproductive Title 42 and similar policies. The Biden administration should do all within its authority to restore asylum access and mitigate the harms of Title 42 while it remains in effect.

The Title 42 policy and its use to ban asylum at ports of entry has contributed to border crossings. It is not a solution to them.

Policies that block or reduce asylum processing at ports of entry drive crossings of the border away from ports of entry by asylum seekers who are unable to access protection at official border posts, as reports by the Department of Homeland Security (DHS) Office of Inspector General have confirmed. Prior to the restrictions at ports of entry, more than 99 percent of asylum seekers from Cuba and Haiti, for example, sought to enter the United States at ports of entry, as the Cato Institute has noted. But with Title 42 still in place largely blocking access to request asylum at ports of entry, in FY 2022, government data shows that just 0.3 percent of Cubans and 23 percent of Haitians have managed to arrive through a port of entry. The number of Haitians processed at ports of entry began to rise in recent months and NBC News found that “[s]ince more [Haitians] began being admitted at ports of entry in June, the number of Haitians apprehended between ports of entry has fallen from 7,694 to 130, according to internal Customs and Border Protection data.”

Many of the people crossing into the United States are refugees fleeing persecution.

Far from a threat, many of those arriving in the United States are themselves fleeing repression, persecution, and torture in their home countries. For instance, in June 2022 (the last month with available government data), 52 percent of people encountered by the Border Patrol in the Del Rio sector and 28 percent in the Yuma sector were from Cuba, Haiti, Nicaragua, and Venezuela. These and others have fled countries from which many refugees are escaping political persecution, anti-LGBTQ violence, repression of journalists and peaceful protestors, armed attacks by non-state forces that exercise territorial control, and other forms of persecution.

Asylum seekers stranded in Mexico by Title 42 face deadly dangers.

The continuation of the Title 42 policy condemns asylum seekers and migrants expelled to or blocked in Mexico to grave dangers. As of June 16, 2022, Human Rights First has tracked more than 10,318 reports of murder, kidnapping, rape, torture, and other violent attacks against people blocked in or expelled to Mexico due to Title 42 since January 2021. They include Jocelyn Anselme, a Haitian asylum seeker, murdered in Tijuana while blocked from seeking asylum due to Title 42; a 19-year-old transgender asylum seeker from Honduras who was expelled by DHS three times to Mexico where she had been raped and her long hair cut off by transphobic assailants; and a Nicaraguan couple and their nine-year-old child kidnapped in Reynosa in June 2022.

Using Title 42 to expel refugees to danger without access to the U.S. asylum system is wrong, illegal, and inhumane.

Some politicians and the Border Patrol union want even more people to be illegally expelled under Title 42 without access to asylum. But as DHS officials and experts have pointed out many—such as individuals from Cuba, Nicaragua, and Venezuela—cannot be expelled to their home countries due to logistical and diplomatic reasons, including the refusal of some (repressive) governments to accept their nationals back. Many Venezuelans have recently fled their country, and are now forced to take treacherous journeys via the Darién Gap following U.S. pressure to end Mexican visas that allowed safer travel to the U.S. border. Even if the U.S. government could physically expel more people directly to their home countries without access to asylum, doing so would return yet more refugees to life-threatening danger and continue to violate U.S. law and treaty obligations that prohibit the return of individuals to persecution or torture. The bottom line is that policies like Title 42 and visa restrictions actually spur dangerous journeys and crossings outside ports of entry.