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June 30, 2021

Letter to President Biden on reported Title 42 expulsion policy extension

Dear President Biden:

We, the 109 undersigned organizations, write to express our alarm and disappointment that your administration is reportedly considering plans to continue to use the unlawful Title 42 expulsion policy to block and expel adult asylum seekers for at least two more months and may use punitive measures such as ankle monitors and expedited removal in processing families. Not only does the Title 42 policy violate U.S. refugee law and treaties, but it also endangers people seeking U.S. protection, with over 3,250 kidnappings, rapes, and other attacks on people expelled or blocked at the U.S.-Mexico border since you took office. This number rises every day your administration fails to end this policy. We urge your administration to fully rescind this policy for all populations, comply with U.S. refugee law, and ensure that Black, LGBTQ and other adult asylum seekers, many of whom have been turned back or expelled at ports of entry, as well as families and children, have swift access to the U.S. asylum system.

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Many of our organizations have repeatedly called on your administration to end the Title 42 expulsion policy and restart asylum processing for people seeking refuge. Rational, science-based measures, recommended by public health experts exist to mitigate COVID-19 concerns and safely process asylum seekers at the border. The use of Title 42  – described as a “Stephen Miller special” by a former Trump administration official – was implemented over the objections of senior Centers for Disease Control and Prevention (CDC) experts and has been widely discredited by epidemiologists and public health experts who have confirmed it has “no scientific basis as a public health measure.” These experts provided detailed recommendations for the safe processing of asylum seekers to your transition team, the CDC, and other officials in your administration. In May 2021, medical experts for the Department of Homeland Security (DHS) filed a whistleblower disclosure condemning the policy for lacking a public health justification and for fueling widespread family separation and detention of children. Medical professionals providing care in encampments and shelters in Tijuana have also decried the expulsion policy as threatening the health and safety of migrants.

Human rights organizations and the media have documented the escalating dangers faced by asylum seekers and migrants subjected to the Title 42 policy, many of whom have been forced into squalid and dangerous conditions in several new camps near the border. Legal and humanitarian staff who work with migrants subjected to the policy have also faced serious risks to their safety. The Title 42 policy has also driven family separations as it presents families with the impossible choice of keeping children in danger or sending them alone across the border for their safety. As a result, many of the single adults who are now stuck in Mexico are desperately trying to reunite with their children in Office of Refugee Resettlement custody or with family in the United States.

The expulsion policy has disproportionately affected asylum seekers from Africa, the Caribbean, and elsewhere, who were not placed in the Migrant Protection Protocols (MPP) and are not eligible for processing into the United States under Phase 1 or Phase 2 of its winddown. Black and LGBTQ asylum seekers blocked in Mexico under the expulsion policy and unable to request protection at a port of entry continue to experience targeted discrimination and violence. Recent reports indicate that while your administration may end the policy in July for families, it may continue to subject adult asylum seekers to the policy for at least two months – an unacceptable delay that would prolong disparities in access to protection and disproportionately impact Black asylum seekers from African and Caribbean countries, as well as LGBTQ refugees and others who are not traveling with children. Such an approach would be completely indefensible. Public health safeguards in no way require or justify disparate treatment between families and adults arriving alone. Moreover, such an approach is contrary to U.S. asylum law and the non-discrimination provisions of the Refugee Convention.

We are concerned that this administration continues to look to deterrence as a strategy to address processing of asylum seekers at the border. Ankle monitors, budget requests for expansive detention, and expedited removal are part of a deterrence strategy that is inhumane and ineffective. Such a cruel strategy is the physical manifestation of the statement “Don't come.” Electronic monitoring devices are a particularly intrusive measure that causes physical and emotional harm without a positive impact on appearance rates as compared to appropriate, community-based case management services. With respect to expedited removal, many of our organizations, as well as the bipartisan U.S. Commission on International Religious Freedom, have long noted failures by Customs and Border Protection officers and Border Patrol agents to follow basic required procedures to identify individuals who must be referred for credible fear interviews, as well as intimidation and coercion of asylum seekers to withdraw requests for protection. 

While we greatly appreciate your administration’s ongoing efforts to process into safety certain asylum seekers subjected to MPP, we remain gravely concerned that the Biden administration continues to block and expel asylum seekers to the same dangers under the Title 42 policy. In a rare public statement calling on this country to uphold its legal obligations, the U.N. High Commissioner for Refugees recently urged the United States to swiftly end this policy and “restore access to asylum for the people whose lives depend on it, in line with international legal and human rights obligations.”

With the 70th anniversary of the Refugee Convention approaching in July, we urge your administration to end its misuse of Title 42 public health authority immediately, restore asylum processing in line with U.S. refugee laws and treaties for all asylum seekers – including at U.S. ports of entry – and set an example for the rest of the world by welcoming refugees with dignity.

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