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It’s the US Government’s Immigration Policy That’s Illegal

The media talks obsessively about "legal" versus "illegal" immigration. But for years, the US government itself — including the Biden administration — has been engaged in a lawless, stealthy dismantling of our refugee asylum system.

Guatemalan Jose Aroche and his son in a makeshift migrant camp in Tamaulipas, Mexico, on July 10, after his family was returned to Mexico under Title 42. (Paul Ratje / AFP via Getty Images)

There’s a crisis on the imaginary line that separates the United States from Mexico, but it’s not the one politicians and media outlets have been talking about.

Earlier this year, the US political class was focused on a supposed “surge” in migration and on serious — but not unprecedented — failures in the treatment of unaccompanied minors. This distracted attention from two far more serious issues: the Trump administration’s misnamed Migrant Protection Protocols (MPP), now discontinued, and the ongoing use of the US health code’s Title 42 to exclude asylum seekers from entering the country.

With these two measures, the executive branch all but dismantled the nation’s asylum system, creating a humanitarian catastrophe on the Mexican side of the southwestern border, where tens of thousands of asylum seekers have been forced to live in danger from disease and criminal gangs. But the executive’s assault on asylum seekers has also created a crisis for people on the US side of the border.

The US asylum system is mandated by a federal law, the Refugee Act of 1980, and by an international treaty, the 1967 Protocol Relating to the Status of Refugees. The violation of asylum seekers’ rights over the past three years demonstrates how easily a president can ignore and even defy the law — especially when the victims are poor or marginalized and not enough of us speak out.

Protecting or Endangering?

The Trump administration launched MPP, also known as “Remain in Mexico,” in January 2019. The clear intent was to prevent asylum seekers from being able to win their cases. 

US asylum law specifies that “any alien who is physically present in the United States or who arrives in the United States” may apply for asylum “irrespective of such alien’s status” and “whether or not [they arrived] at a designated port of arrival.” Before the Trump administration, asylum seekers were able to pursue their claims from within the United States if they had passed a “credible fear” interview. Many were kept in detention — often arbitrarily — but others were paroled into the country to live with family or friends, seek legal counsel, and eventually apply for work authorization.

Under MPP, asylum seekers who had demonstrated credible fear after arriving at the southwestern border were simply handed a court date and pushed back into Mexico. Forced to live in overburdened Mexican shelters, in tent encampments, or on the street, these migrants, including families with small children, were cut off from their contacts in the United States, from most access to legal advice, and from jobs and the means to support themselves. Many were left in Mexican states with high levels of violence — Tamaulipas, for example. The US State Department maintains a “do not travel warning” for the state, the same warning as for Afghanistan.

The Biden administration officially ended MPP in January. By then, more than seventy-one thousand asylum seekers had been removed to Mexico under the program. Of this number, only 641 were granted asylum or allowed to stay in the United States on other grounds, a dramatically lower success rate than usual for people pursuing their asylum claims. Just fifteen thousand asylum seekers were still at the border with open cases; most of the rest either had lost their asylum claims or had simply given up and returned home.

Some suffered even worse outcomes.

The government provided no mechanism for tracking how many asylum seekers fell victim to violence while in Mexico under MPP, but research gives a chilling suggestion: as of this February there had been “at least 1,544 publicly reported cases of murder, rape, torture, kidnapping, and other violent assaults against asylum seekers” in MPP, according to a study by Human Rights First, an organization that monitors conditions at the border. “Among these reported attacks are 341 cases of children returned to Mexico who were kidnapped or nearly kidnapped.”

Abusing the Health Code

But MPP wasn’t harsh enough for the Trump White House: unaccompanied minors and a few other asylum seekers were still admitted to the country. The COVID-19 pandemic brought administration officials an opportunity to go further. In late March 2020, they invoked Title 42, a rarely used public-health measure, to bar asylum seekers from entering at US borders, ostensibly to stop the virus’s spread. Most of the migrants were now fingerprinted when they arrived at the border and then expelled into Mexico without any opportunity to make their asylum claims. Some, including many Haitians, were deported to their home countries.

The Biden administration is now allowing unaccompanied children and some “humanitarian exceptions” to enter and have their credible fear interviews, but it has continued the great majority of Title 42 expulsions. According to the Los Angeles Times, more than 630,000 of these expulsions had taken place from March 2020 through this April. It is unclear how many of the people expelled were asylum seekers, but the number is certainly in the tens of thousands. (There are reports that the administration may modify the policy by the end of July, but only to end expulsions of family units seeking asylum.)

As with MPP, there’s no systematic way to track how many of the migrants excluded under Title 42 became victims of violence. A powerful report released jointly on April 20 by Human Rights First, Al Otro Lado, and the Haitian Bridge Alliance cites “at least 492 public and media reports of violent attacks since January 21, 2021 — including rape, kidnapping, and assault — against people stranded at the US-Mexico border and/or expelled to Mexico.”

A review of abuses in Nogales, Sonora, gave similar results, according to Ryan Devereux at The Intercept. The study found that kidnappings of migrants during the first three months of 2021 were double what they were in the same period last year, before the Title 42 expulsions started.

Operating Outside the Law

There has been some public discussion of MPP and the Title 42 expulsions as human-rights violations, but very little mention of another aspect: violations of US law.

The Trump administration’s justification of MPP was a tortured reading of the immigration code, but the program clearly ran counter to the principle known as non-refoulement, which the United States endorsed by signing the international refugee protocol. Non-refoulement bars governments from returning any person to a territory “when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return” — exactly the situation in much of northern Mexico.

The expulsions under Title 42 — a policy opposed by public-health experts and, reportedly, by Center for Disease Control scientists — have no rational basis as a health measure. Controls to prevent disease transmission make sense if they are applied uniformly, but that isn’t the case with the Title 42 restrictions. US citizens — a US senator, for example, and an accused January insurrectionist — are free to vacation in Mexico and then return. They face no health-based restrictions if they reenter the United States by land.

Elected officials have recognized from the beginning that the two policies make a mockery of the United States’ claim to be “a nation of laws.”

In August 2019, a group of twenty-four senators sent the Department of Homeland Security a letter expressing “grave concerns about [MPP’s] legality” and charging that the program “flouts our legal obligation to asylum seekers.” In April 2020, ten senators responded to the Title 42 policy with a letter describing the administration’s move as “an attempt to . . . ignore laws by executive fiat” and as a “startling” and “unprecedented expansion of executive power.” The president doesn’t have “a free pass to violate Constitutional rights” and “to operate outside of the law,” the senators wrote.

Predictably, the Trump administration paid no attention to these letters. Advocates did respond to the administration’s abuses with court challenges, but the US judicial system lets cases like these drag on for years, especially now that the courts have been packed with right-wing judges. And while the courts dawdle, desperate people who sought US protection continue to be kidnapped, raped, and murdered.

Looking the Other Way

The US public is generally unaware of these outrages.

The corporate media share much of the blame. It’s true that MPP and the Title 42 expulsions have received some excellent coverage at times. A This American Life feature with reporting from the Los Angeles Times’ Molly O’Toole and Vice’s Emily Green on MPP won a well-deserved Pulitzer Prize, and O’Toole and Green have followed up, separately, with important stories on the Title 42 expulsions. But this occasional reporting over two years does little to offset the onslaught of scare headlines about a hyped-up “border surge” and right-wing hypocrisy about “kids in cages.”

The media have been even worse in covering the dangerous legal precedents MPP and the Title 42 expulsions have set. The New York Times, for example, describes Joe Biden’s continuation of the Title 42 expulsions as “a balancing act: how to keep his pledge of a more compassionate approach to migrants while managing a surge of people at the border amid a pandemic.”

As journalist Felipe De La Hoz points out in the Baffler, media debates about “whether permitting access to the United States’ asylum system is the right political choice for President Joe Biden. . . . proceed from the assumption that permitting humanitarian migration is even a choice that the president gets to make.” The Constitution doesn’t give presidents that option; it specifies that the president “shall take Care that the Laws be faithfully executed.” 

After years of running opinion pieces about “legal” and “illegal” immigrants, media outlets now ignore the irony of government officials illegally blocking Central Americans from legally seeking asylum.

As for the politicians, they’ve been better at signing indignant letters than taking action. Kamala Harris joined in the letters against MPP and the Title 42 policy when she was a senator; there’s no evidence that she’s trying to stop abuses by the executive branch now that she’s vice president.

Many centrist policymakers have also kept quiet, citing the “political climate.” “They are afraid of the ‘bad publicity’ from Republicans saying, ‘Biden opened the border,’” according to Sue Kenney-Pfalzer, Border and Asylum Network director at HIAS, a nonprofit that aids refugees and asylum seekers. Andrew Selee, president of the nonpartisan Migration Policy Institute, seems to favor that approach. “Is Title 42 bad policy? Yes,” he said in April. “Is it a necessary instrument to get to better policy? Possibly.”

In January a sitting president tried to overturn the results of an election he’d lost. It’s an ominous sign that his successor is continuing that president’s human-rights violations and his executive power grabs — and that the media and the political class have responded by looking the other way.