DENISE CATHEY/AP PHOTO
The U.S. is allowing over 29,000 asylum seekers with open cases under the Migrant Protection Protocols to cross the border. But no one new has been added to the program since last March.
In March 2020, as the pandemic raged around the world, America closed its doors. The Trump administration used a 1940s public-health ordinance to turn away virtually all immigrants, even blocking would-be asylum seekers that international law requires the U.S. to admit. Even Trump’s meager and unnecessarily cruel immigration entry policies were shut down by this order. Nearly all metering lists, which limit the number of people who can request asylum per day at a port of entry, were shut down. Few were added to the “Remain in Mexico,” or MPP, program, which required asylum seekers to wait in Mexico for their asylum hearing.
One year later, the Biden administration is peeling back the layers that block asylum. Biden in January stopped all additions to the MPP program. In February, he began to slowly process and admit at least 29,000 asylum seekers with open cases in the Remain in Mexico program. But President Biden has left that key Trump border closure policy in place. Its endurance means that there is still virtually no asylum at the border for anyone who has arrived since March 2020.
The Centers for Disease Control and Prevention (CDC) order Trump invoked, known as Title 42 after the section of U.S. Code dealing with public health, allows for temporary entry suspensions, which U.S. Customs and Border Protection (CBP) has used to expel any migrant, without screening for human trafficking or fear of return. An agreement with Mexico’s government allows the U.S. to expel Mexicans and Central Americans across the border, but other nationals are immediately deported to their country of origin. Those with humanitarian visas or residency in Mexico are also sent to Mexico.
Combined with the Remain in Mexico program, this led to thousands of migrants waiting at the border throughout 2020. Human Rights First tracked at least 816 reports of murder, torture, rape, kidnapping, and other violent attacks on migrants and asylum seekers returned to Mexico in MPP’s first year.
Biden has kept the Title 42 order in place. CBP recorded more than 400,000 Title 42 expulsions in fiscal year 2020. To date, CBP has carried out nearly 300,000 expulsions in fiscal year 2021, which began October 1, 2020. The data does not disaggregate recidivism, but immigration advocates say that many of these expulsions are people who, in desperation, try to cross repeatedly. Most people expelled are single adult men, but some are families, too.
Some of the deportation flights carried out by the new administration have also included those expelled under Title 42. Although not everyone attempting to cross the border is an asylum seeker, for those who are seeking protection, the Title 42 ban is creating desperation—with no end in sight.
“There is no right to seek asylum. There is no process to seek asylum for anybody who doesn’t have an open MPP case,” said Alex Mensing, communications strategist for Innovation Law Lab, an immigration legal organization. “The only information is ‘Wait.’ That’s the only message and that’s just not good enough for people who have been waiting in really horrible conditions for years.”
Most public-health experts say that Title 42 is a bogus health order that does little to stop the spread of COVID-19. While asylum seekers are expelled and deported at the border, millions of Americans have been able to cross into other countries and back freely. Even CDC officials have long objected to the policy. One former CDC official told CBS News, “We were forced to do it.” The Associated Press reported that Vice President Mike Pence overruled a top CDC doctor in order to close the borders.
Since its implementation, advocates have sought to enjoin the policy. In November 2020, a district court issued a nationwide order blocking the administration from deporting unaccompanied children under Title 42, but a federal court in January overturned this. Last month, the ACLU of Massachusetts announced a new challenge to the Title 42 ban, arguing that the government’s expulsions did not adhere to U.S. immigration law.
The main difference in Biden’s implementation is that border officials are no longer deporting unaccompanied children under Title 42. That decision, combined with confusion about Biden’s border policies among migrants, has led to a dramatic increase in the number of unaccompanied children taken into custody, transferred to the refugee office, and placed with a sponsor. In February, shelters received more than 7,000 unaccompanied children, double the number accepted in February 2020.
New migrants and asylum seekers arrive daily, hoping Biden’s tone might be reflected in his border policies.
But this was not what immigrant rights’ advocates and public-health experts sought when Biden took office; they urged a quick reversal of the entire order. A February 2 letter asked Biden to keep his campaign promises and end “inhumane Trump administration border policies.” Public-health experts added to the chorus.
“Our letter really was seeking to pull the fig leaf off of [the public-health] argument,” said Michele Heisler, medical director for Physicians for Human Rights. “It was always an ideologically oriented, politically motivated effort to deter asylum seekers, against international law, against national law, against our values.”
But in a press briefing on March 1, Homeland Security Secretary Alejandro Mayorkas defended the order. “If families come, if single adults come to the border, we are obligated to, in the service of public health, including the health of the very people who are thinking of coming, to impose the travel restrictions under the CDC’s Title 42 authorities and return them to Mexico,” he said. A week later, Ambassador Roberta Jacobson, who is the coordinator for the southern border, directly said at a White House press briefing, in Spanish, “The border is closed.”
The administration’s public statements on Title 42 have put the administration in the bizarre position of defending a public-health order they know to be bogus. Even their own processing of unaccompanied children and of asylum seekers in the MPP program belies their public-health rationale; those admitted are COVID-19 tested and placed in quarantine if they test positive. (Very few test positive at all.)
Indeed, the Title 42 order appears to be an excuse, an effort to buy the administration time to untangle the web of Trump border restrictions. But it’s also creating the very border chaos Biden has publicly vowed to stop.
THIS IS HARDLY the first time the U.S. has turned would-be migrants away under a health rationale; migration control policies date back to before America was a country. The Immigration Act of 1891 banned entry to anyone “suffering from a loathsome or a dangerous contagious disease.” This was a more common scenario at the time. “It was business as usual to have some kind of epidemic,” said David FitzGerald, a professor at the University of California, San Diego, who studies migration controls.
European immigrants traveling by boat in the 19th century experienced medical screening, but the degree of scrutiny varied from steerage to first class. The opening scene of The Godfather Part II depicts a young Don Corleone, fleeing violence in Sicily, forced to quarantine on Ellis Island, a common practice but applied almost exclusively to poor immigrants.
At European ports of departure, FitzGerald explained, even shipping companies hired doctors to examine emigrants before they boarded boats to America, because if someone was turned away at Ellis Island, the shipping company was liable for returning that person to Europe. In some countries, the U.S. government stationed government doctors abroad for health examinations. Using “buffer” countries for screening and quarantine is also a long-standing practice. Some European immigrants arrived via Halifax or Quebec, where they quarantined before entering other parts of Canada or the U.S.
But the Title 42 order stands out. “What’s different about it is the way that it’s been used,” said FitzGerald. “I’m not aware of other precedents of that, the way that asylum seekers have been expelled back into Mexico.”
PICTURE-ALLIANCE/DPA/AP IMAGES
Migrants gather at the border in Tijuana. The Biden administration’s use of Title 42 is creating an artificial pause in migration.
Immigration rights advocates say that enforcing the Title 42 ban is a violation of non-refoulement, an international principle of the 1951 U.N. Refugee Convention banning governments from deporting people to countries where they may be persecuted. “Under the Trump administration, it absolutely was refoulement,” Heisler said. It’s unclear, as of publication, how it’s any different under the Biden administration; in Reynosa, a border city in Mexico, new asylum seekers and migrants are expelled every day and linger in a plaza near the port of entry. Reynosa volunteers who spoke to the Prospect described the situation as cyclical, explaining that they bring food and supplies to new people every day. Nearby migrant shelters are full.
When the order was initially signed, one stated concern of the Trump administration was that migrants would be detained in congregate settings, a petri dish for the spread of COVID-19. But advocates point out that there’s no law requiring the government to detain asylum seekers. The government can parole migrants with a hearing date and connect them with family and sponsors in the U.S. The state of California has budgeted for hotel rooms for asylum seekers admitted in the MPP program to quarantine before traveling to their final destination.
Advocates are skeptical that the administration can’t do more because of pandemic-related restrictions. “The administration is saying they can’t process a handful of asylum seekers a day at some of the largest ports of entry in the world,” said Kennji Kizuka, a policy analyst for Human Rights First. “Just boggles the mind that they can’t find ways to do that safely.”
Tom Cartwright, a volunteer who tracks deportations for Witness at the Border, said that given Biden’s focus on COVID-19 safety, anything that even looks like it could be a risk will be heavily scrutinized. He added, “I think that there is an innate fear, mostly fueled by the right wing, of a surge, a crisis, all of these inflammatory words about people coming to the border, and that they won’t be able to handle them in a humane way.” Mainstream news outlets have been reporting high numbers of Border Patrol apprehensions, but often leaving out a big part of the story. It’s true there are high numbers of new arrivals at the border, hoping the new administration with more humane rhetoric might allow them to cross, but it’s also true that many of the apprehensions are people who are trying to cross three, four, five times and are summarily returned.
As of early March, the administration was only processing asylum seekers at three ports of entry at a rate of roughly 25 people per port per day. There are 29,000 open MPP cases that are eligible for admission, according to the administration’s plans for phase one. At this rate, it will take months to process them. Then there are another 40,000 people whose cases have been closed, but for whom the administration has expressed support for allowing to appeal. And these are the historical cases. Since March 2020, only those who cannot be deported under Title 42—mostly individuals whose governments refused to accept deportees—have been added to the MPP program. With no guidelines for those expelled under Title 42, thousands of asylum seekers still on pre-COVID metering lists and those who have approached the border since the program’s end are in limbo, with no status, no place in line, and no communication from the administration except to wait without indication of for how long.
On the campaign trail and since the inauguration, Biden has taken pains to emphasize that his immigration policies will be more humane than Trump’s, or even President Obama’s. But his administration has maintained a virtual ban on asylum. The border is still closed, officials say repeatedly.
That message isn’t getting through, however, and new migrants and asylum seekers arrive daily, hoping Biden’s tone might be reflected in his border policies. Instead, the Title 42 health order appears to be a tool for the Biden administration to create an artificial pause in migration, perhaps to allow for reconstruction of a system dismantled by Trump. But instead of achieving that, the order has contributed to confusion and suffering, forcing migrants back into treacherous Mexican border towns.
The administration has applied a “tourniquet” to the border, said Cartwright. “It has essentially destroyed any ability of migrants to assert their legal right to protection in the United States.”
