The Opposite of Orderly and Humane: Use of Title 42 Spurs Disorder and Undermines Security

The Biden administration’s use of Trump administration policies to turn away people seeking protection along the southern border with Mexico is spurring disorder and escalating security threats. These policies are also responsible for systematic human rights abuses and violations of refugee law that Human Rights First has repeatedly documented. Since President Biden took office in January 2021, there have been at least 8,705 reports of kidnapping, rape, torture and other violent attacks on migrants and asylum seekers blocked in or expelled to Mexico by the Department of Homeland Security (DHS). The rapid expulsion of migrants without any legal process has resulted in massive increases in repeat border crossings and as a result inflated Customs and Border Protection (CBP) apprehension statistics. The failure of U.S. agencies to comply with asylum law at official U.S. ports of entry has pushed asylum seekers to undertake increasingly dangerous border crossings away from ports of entry. With the continued use of these counterproductive and illegal policies, Cuban, Haitian, Venezuelan and other asylum seekers, who largely sought asylum at ports of entry, are now overwhelmingly crossing between ports of entry, as government data confirms.

The Title 42 policy has created a vicious cycle of disorder as CBP deploys staff away from processing at ports of entry to respond to increased crossings between ports and in vehicle lanes, even though the failure to process asylum seekers at ports of entry is a major factor driving many to cross away from the ports. Title 42 and other policies that evade U.S. asylum law also drive family separations and contribute to the arrival of unaccompanied children, as some parents fear leaving their children even longer in danger in Mexico to wait to be able to seek asylum together in the United States.

These counterproductive policies have also been a boon to the brutal criminal cartels in Mexico that present a serious threat to both U.S. security and the lives of the asylum seekers who are turned back to areas under their control. As these turnback policies have escalated, cartels have adapted to further target asylum seekers turned away by CBP – kidnapping them, purporting to charge them for the right to remain in Mexico, torturing them and demanding ransom payments from their U.S family members. Some organized criminal organizations are working to actively prevent asylum seekers from approaching ports of entry, as the restoration of port of entry processing for asylum seekers threatens the cartels’ control and extortion efforts. In addition, CBP reports that the use of Title 42 has reduced the agency’s ability to collect information on the Mexican cartels that are increasingly fighting to exercise even greater control over border regions.

To address the disorder created by policies restricting access to asylum at the southern border and the insecurity it has generated, the Biden administration must:

• restart receiving requests for asylum, including at ports of entry—as required by U.S. law—and
• stop using Title 42 and other turn back policies, which inflate Border Patrol encounters as people repeatedly attempt to cross the border through increasingly remote and dangerous routes.