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Biden Ends Title 42 - But Too Late for Many Asylum Seekers

The Biden administration announced that it will terminate its Title 42 policy on May 23, 2022. This announcement marks a crucial first step towards building a fair and humane asylum system that welcomes people fleeing persecution with dignity.

We are dismayed, however, that the administration has stated expulsions will proceed unabated over the next seven weeks. And all the while Ukrainians and Russians do not seem to be subject to the same cruel policy.

The Biden administration has ample resources to process asylum seekers at the border, and in the coming weeks should take immediate steps to bring people to safety. The administration has a legal obligation and a moral imperative to do nothing less.

“Today’s announcement is the result of two years of hard-fought advocacy by asylum seekers, advocates, litigators, immigrant rights organizers, and public health experts,” CGRS Director Professor Karen Musalo said today. “People living along the border and across the country have shown the Biden administration that they are ready to welcome asylum seekers into their communities with open arms. We hope the administration will match their compassion and sense of urgency, and swiftly establish a fair asylum process which complies with our domestic and international legal obligations and receives people seeking safety at the border with humanity.”

Under the Title 42 policy the U.S. government deprives people seeking asylum of their legal right to request protection at the border, instead summarily “expelling” them to perilous conditions in Mexico, or to the very countries they have fled. The policy was designed by Trump’s white nationalist advisor Stephen Miller, who launched it in March 2020 under the guise of COVID-19 mitigation. Public health experts, including top doctors within the Centers for Disease Control and Prevention (CDC), have always seen Title 42 for what it is: “xenophobia masquerading as a public health measure,” and the most successful of Miller’s policies designed to block Black and brown asylum seekers from entering the United States.

CGRS has brought multiple lawsuits challenging the legality of Title 42. In March the D.C. Circuit Court of Appeals handed down a favorable decision in Huisha-Huisha v. Mayorkas, our class action suit with the ACLU, Oxfam America, RAICES, and Texas Civil Rights Project, concluding that it is unlawful to expel people to places where they face persecution or torture with no legal process.

“The Biden administration’s termination of Title 42 is long overdue,” said CGRS Legal Director Blaine Bookey. “From day one, Title 42 has been a bald-faced attempt to punish and endanger people seeking refuge, violating U.S. and international law in the process. As the administration embarks on its wind-down process, it must take immediate steps to protect lives.”

We are concerned that the administration has thus far failed to meaningfully coordinate and communicate with humanitarian and legal services organizations providing critical on-the-ground support to asylum seekers. That must change immediately. The government should work alongside community organizations to bring people to safety, ensuring groups have the information and resources they need to be effective and coordinating with Congress to provide them with much-needed funding.

In the coming weeks the administration should swiftly process outstanding humanitarian parole and Title 42 exemption requests, and bring particularly vulnerable people to safety, including LGBTQ+ individuals, unsheltered populations, Black and indigenous asylum seekers, those with urgent medical needs, survivors of violence in Mexico, and those at risk of persecution or torture in the countries to which they would be expelled. As the administration ramps up asylum processing at the border, it must ensure people have meaningful access to legal assistance, interpretation, and any necessary medical care, and coordinate with border groups on transportation to individuals’ destination communities in the United States.

“There is no reason why the Biden administration cannot immediately restart asylum processing at ports of entry as we have seen them do for countless Ukrainians since mid-March,” said CGRS Director of Litigation Melissa Crow, co-counsel in Huisha-Huisha and Al Otro Lado v. Mayorkas, which successfully challenged the government's policy of turning back asylum seekers at the southern border. “The administration has had 14 months to prepare and marshal the resources necessary. Moreover, our Al Otro Lado v. Mayorkas litigation has revealed that the government has far greater capacity to welcome asylum seekers than they acknowledge. The administration should resume processing without delay, and in close coordination with humanitarian organizations assisting asylum seekers at the ground.”

Even as the administration heralds an end to Title 42, it is quietly continuing its unconscionable campaign of mass expulsions to Haiti. Yesterday the administration sent its 212th removal flight to Haiti, sending 120 vulnerable people to a country reeling from political turmoil, rampant organized crime violence, and multiple natural disasters. Additional expulsions of Haitian families with babies and young children are scheduled for early next week.

As it winds down Title 42, the Biden administration must halt removals to Haiti and end all other expulsion flights. Summarily expelling asylum seekers to the countries they have fled with no screening whatsoever has always violated our obligation not to return people to persecution or torture (non-refoulement), which is enshrined in both U.S. and international law. With the end of Title 42 on the horizon, there is no excuse to continue this travesty, which will leave a lasting stain on the Biden administration’s legacy. Melanie Nathan of AHRC noted: " Killing this awful Trump-era policy will save lives. But this is not good enough! LGBTQI people remain in particularly traumatic and dangerous conditions on borders and should be allowed immediate access to the U.S. asylum process. There is no room for excuses when people's lives are so seriously impacted. Biden has had plenty of time to get organized for this moment that should have occurred the day he entered office."


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