Guest Commentary: ACLU Sues to Stop the Use of Title 42 to Justify Expelling Migrants without Due Process

Migrants seeking asylum gather last month at a makeshift camp on the Mexican side of the San Ysidro Port of Entry in Tijuana. Title 42 has stopped most asylum cases during the pandemic. Mario Tama/Getty Images

By Victoria López

With migration trends again in the national spotlight, people seeking refuge in the U.S. are seen as numbers on a graph instead of human beings in crisis, and policymakers, including border-state politicians, forget that enshrined in international and U.S. law is the fundamental right to seek asylum.

When people come to the U.S. seeking protection, they are doing so based on an extensive set of laws that allow them to seek asylum based on fear of persecution in their home country.

During the Trump administration, a multitude of obstacles and restrictions were placed on asylum seekers, making it almost impossible for people to seek protection in the U.S.

The most sweeping barrier was the unprecedented use of a little-known provision, Title 42, to justify the summary expulsion of migrants – without due process – in the name of public health.

Title 42 inflicts severe harms on those seeking protection from persecution. People like 10-year-old Wilton Obregón, who was found crying and shaking as he wandered the desert near the border, abandoned by traffickers. His case was documented by the Washington Post.

Wilton and his mother, Meylin, 30, crossed the border into Texas to seek asylum after fleeing their native Nicaragua due to the terror of domestic violence. Tragically, they were immediately sent back to Mexico under Title 42, where they were kidnapped just hours later. Wilton’s family was able to come up with the ransom to free him, but not his mother.

Many forced to wait in dangerous conditions

Between March 2020 and May 2021, the U.S. government expelled nearly 875,000 people under Title 42 – that’s nearly 2,100 people a day who have been returned to their home countries or forced to wait in life-threatening conditions in Mexico.The American Civil Liberties Union is challenging Title 42 in court for violating various federal laws, including those designed to ensure that desperate people seeking asylum are treated fairly.

Many cases are delayed for months, or even years, and nearly 3,300 migrants left stranded in Mexico since January have been kidnapped, raped, trafficked or assaulted.

Soon after taking office, the Biden administration suspended, and later formally ended, the previous administration’s controversial Migration Protection Protocols, or “return to Mexico” policy. They also ended Trump-era policies that blocked unaccompanied minors and people escaping gender-based violence, gang brutality and other human rights violations from seeking asylum in the U.S.

Public health a misleading and moot argument

However, Title 42 remains in place.

Neither the Migration Protection Protocols nor Title 42 stemmed the tide of border apprehensions or people seeking asylum. In fact, they failed miserably as deterrence strategies, increasing backlogs and ignoring the human cost.

Despite the Biden administration’s actions, the border remains largely closed to the majority of those seeking asylum because the U.S. continues to summarily expel migrants based on Title 42.

These expulsions continue despite objections by CDC officials and against recommendations of public health experts and top United Nations officials. Particularly, with COVID-19 vaccines and tests being widely available in the U.S., the arguments for keeping temporary restrictions in place for health reasons are moot.

Asylum seekers deserve humane consideration 

People seeking asylum like Wilton and his mother Meylin deserve the chance to make their case in a humane fashion with due legal process. Yet state and national leaders continue to rely exclusively upon a law enforcement approach, calling for increases in border patrol officers and detention beds rather than humanitarian supports.

Our asylum laws afford the opportunity to provide people with safety, get them on their feet and make them aware of their legal rights and responsibilities while they await the processing of their case.

The U.S. Customs and Border Protection’s hefty $18 billion budget should be reworked to focus more on solutions that reflect our values and commitment to treating asylum-seekers fairly and with dignity, including supporting community-run and humanitarian-focused services that support people seeking asylum as they present their cases seeking protection in the U.S.

It’s better for those seeking asylum, and it’s better for our communities.

The current system isn’t working, and needs to be rebuilt.

The first step toward restoring our promise of offering the freedom and liberty this country has granted to so many before us is to end all Title 42 expulsions. Only then can we work to provide a lawful and humane process for those seeking asylum.

Advocacy and Legal Director of the ACLU.  Originally published in the Arizona Republic

About The Author

Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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