US: End Misguided Public Health Border Expulsions

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An asylum seeking family from Guatemala stands on the Paso del Norte international bridge. After border agents turned the family away at the port of entry, the family swam across the Rio Grande.
© 2021 David Peinado/NurPhoto via AP

(Washington, DC) – The United States government’s summary expulsion of irregular border crossers without regard to their asylum claims or need for protection on ostensible public health grounds puts lives at risk and violates US obligations under international law, Human Rights Watch said today in releasing a “question and answer” analysis. The administration of President Joe Biden should immediately stop returning asylum seekers to harm and rescind the March 2020 order invoked to authorize the expulsions.

The Centers for Disease Control and Prevention (CDC) issued the order under pressure from the administration of former President Donald Trump. The order, which is based on the misapplication of Title 42 of US law – an obscure 1944 public health law not intended for immigration enforcement purposes – has been wrongfully used to give US Customs and Border Protection (CBP) unchecked authority to summarily expel migrants, including asylum seekers, arriving at US land borders.

“President Biden promised during his campaign to restore the right to seek asylum, but close to 100 days into his administration, Trump’s border expulsion policy remains in place,” said Ariana Sawyer, US border researcher at Human Rights Watch. “The Biden administration should immediately stop returning asylum seekers to harm, and instead build a humane border regime that protects public health and respects rights.”

CBP agents have so far performed more than 642,700 expulsions under the CDC order, which uses public health as a pretext for dismissing human rights obligations. Under the order, agents have been denying asylum seekers access to nonrefoulement screenings required under US and international law to ensure they are not returned to persecution or torture.

The expulsion policy is only being applied at the border, and other travelers do not face the same restrictions.

At least 13,000 unaccompanied children were expelled during the Trump administration. The Biden administration has since made an exception in processing unaccompanied children but has continued expelling children traveling with family members.

The expulsions of Haitian asylum seekers are particularly concerning. Leaked DHS documents show the agency knew that Haitian asylum seekers would likely face harm if expelled to Haiti, a country the agency identified as suffering from political instability, kidnapping, and violence. Nevertheless, DHS has expelled hundreds of Haitians, including young children and babies, both to Haiti and Mexico.

Human Rights Watch interviews with people summarily expelled and the observations of other groups strongly suggest that the people subjected to summary expulsions are largely Black, brown, and Indigenous people. With no meaningful review or oversight of individual CBP officers’ discretionary decisions, existing structural inequalities in immigration law and access to protection are likely to be even more pronounced.

Migrants are either expelled to their country of origin or dangerous Mexican border cities, where they are routinely targeted by criminal organizations for extortion, rape, assault, and other violence, and where they often lack resources. Haitians are especially easy to identify as non-Mexicans, making them particularly vulnerable to such targeting. And the language differences for Haitians and other non-Spanish-speaking migrants create barriers to finding transportation, housing, case management, and daily necessities.

Migrant shelters in El Paso performing humanitarian reception were misled by DHS under the Biden administration. They said they were told to expect more families to be released into their care. The shelters had prepared for and were ready to receive those families, offering medical checks, help with travel, and quarantine as needed. It was a surprise when the asylum seekers were expelled to Mexico instead.

“They told us we were going to El Paso, [Texas],” said one asylum-seeking father who was unexpectedly expelled to Ciudad Juárez along with dozens of other families after spending days in CBP custody. “We didn’t know what was going to happen. They said, ‘Come on, follow us. Cross this bridge.’ We ended up in Mexico. They tricked us into coming here.” The father said he could not return to his home in Honduras because of threats against his life by gang members.

Biden has since announced he is looking to ramp up expulsions of families. The administration should invest in existing organizations and shelters already successfully performing reception at the border instead.

The expulsion policy has also resulted in family separation. Children traveling with adult relatives other than their parents are also being separated by border agents who are then expelling the adults and classifying the minors as unaccompanied.

The right to seek asylum applies even in times of emergency. The United States should respond to people who arrive at the border in a fair, efficient, and rights-respecting manner that also protects public health, Human Rights Watch said. It should end summary expulsion and return and develop a humanitarian reception system. The US government should also implement public health procedures to limit the spread of Covid-19, provide sufficient resources and structural reforms to process asylum claims fairly and efficiently, and act quickly to address border agency impunity.

“There is no public health justification for singling out asylum seekers and migrants at the border and subjecting them to harsher restrictions than other travelers,” Sawyer said. “By continuing these expulsions, the Biden administration is violating the rights of asylum seekers and should change course immediately.”