Article by Paulina Montez,
Since March 2020, the Trump administration has used Title 42, a part of the US Code commonly used to promote public health, to prohibit asylum seekers from entering the U.S. After being processed, the asylum seekers are then returned to the country they entered the U.S. through, their country of origin, or another location designated by the Center for Disease Control and Prevention (CDC). While the administration says the law is being used to reduce exposure to COVID-19 in the U.S., others disagree, saying the use of the law is unprecedented and that this is the first time it has been implemented broadly enough to apply to all people entering through the U.S.-Mexico border. Activists say this is the newest way the Trump administration is seeking to prevent people from being able to engage with the asylum process within the U.S. The Administration is doing so by sending asylum seekers back to where they came from, rather than abiding by usual immigration processes, such as temporarily holding them in US facilities. Physicians for Human Rights released a public comment saying the use of Title 42 is violating US and international legal obligations by infringing on the rights of asylum seekers who are seeking a safe haven in the country. The organization emphasizes the importance of evidence-driven policy and points out that there is no evidence demonstrating that asylum seekers pose a greater threat of spreading COVID-19 than any other group. While COVID-19 provides an excuse to use Title 42, it is just one of the many strategies the Trump administration is implementing to dramatically reduce access to the asylum process.
Exactly 206,783 Title 42 expulsions occurred at the border between March and September. As Immigration and Customs Enforcement (ICE) does not make a great effort to return asylum seekers to their origin countries, most individuals are being returned to Mexico, even though they are not Mexican and usually have little-to-no resources to survive. Global organizations such as Amnesty International and Human Rights Watch have denounced the expulsions, saying the law is forcing thousands of people to live in unsafe, unsanitary, and inhumane conditions in some of the most dangerous parts of Mexico. As a result of the pandemic, asylum hearings for non-detained cases at courts without an announced date have been postponed through late November, forcing asylum seekers to wait even longer for their hearings than before. As they wait, they are forced to live in tent communities, making it difficult to mitigate the spread of COVID-19. When faced with the choice between returning to living in fear in their country of origin or remaining in Mexico to await a hearing that may never come, many choose to wait in Mexico.
The communities continue to live in makeshift camps near the border where populations already existed as a result of the “Remain in Mexico” policy, also known as the Department of Homeland Security’s “Migrant Protection Protocols.” The policy was enacted in January and requires certain asylum seekers who arrived by land at the border and passed a credible fear screening to return to Mexico to await their asylum hearings. Unable to find jobs, some survive on the limited funds of charitable organizations, and live in cramped conditions without access to showers. The communities have faced relocation due to the flooding of the Rio Grande river in the aftermath of Hurricane Hanna, deaths of community members, and cartel violence. Migrants are particularly susceptible to cartel violence as they are viewed as targets to kidnap and extort because cartels assume they have relatives in the U.S. who are able to pay a ransom. Migrants are also commonly susceptible to sexual assault and robbery. In addition to the issues asylum seekers must cope with in their tent communities, they face an uphill legal battle. Asylum seekers must file for asylum within one year of their entry into the U.S., and for some, their year has run out as a result of the delayed hearings. There has been no indication whether they will be allowed an extension. The administration is purposefully violating the country’s domestic and international legal obligations which dictate that the country must allow anyone who enters the US to apply for asylum. Guidance by the United Nations High Commissioner for Refugees states that any new measures enacted during the COVID-19 pandemic cannot deny people’s opportunity to apply for asylum.
In addition to Title 42 and the Migrant Protection Protocols, the Trump administration has implemented other policies to deny access to asylum proceedings. For example, the administration has negotiated agreements with Guatemala, Honduras, and El Salvador that require asylum seekers to apply for status in other countries first. All three countries have high rates of violent crime perpetrated against their migrant populations. Corruption is widespread, and there are especially high rates of crime against women and marginalized groups such as LGBTQ+ individuals. Moreover, the countries lack the capacity to provide resources to help migrants through the asylum process, as well as humanitarian aid to assist them when they are able to re-settle. Finally, many asylum seekers come from those exact countries seeking refuge from corruption and poverty. The U.S. must cease the use of these laws, allow people to go through the asylum process safely, and refer to public health professionals to mitigate the spread of COVID-19. International organizations assert that these agreements violate the country’s duties stemming from the 1951 Refugee Convention, which upholds that countries cannot expel refugees to an area where their life would be threatened on account of various factors such as race, religion, and membership of a particular social group.
As asylum seekers continue to face dire conditions on the Mexican side of the border, so do other migrants on the American side. Thousands of people cross the US border every year to flee persecution, violence, and poverty, and end up in ICE detention centers that are notorious for alleged human rights abuses. One of the most recent alleged abuses includes accusations that women at two US detention centers were forced to undergo hysterectomies without their consent. The rumors began when a nurse who worked at one of the detention centers demonstrated concern about the number of hysterectomies being performed on the detained women. ICE rejected the allegations, saying hysterectomies would never be performed without a detainee’s consent.
Marcelo Ebrard, the Secretary of Foreign Relations of Mexico, along with Mexican President Andrés Manuel López Obrador, attended a press conference where they said that the alleged forced sterilizations of Mexican women and other migrants in US detention camps was unacceptable. Ebrard said they were in contact with six women of Mexican nationality who were potentially subject to the procedure. The Ministry of Foreign Affairs reported that the Mexican consulates in Georgia and Texas were investigating the procedures on the women in both states. The Mexican government requested detailed information about the issue from the U.S., and also suggested that it might take legal action against the U.S. if the allegations are found to be true. If the allegations are proven to be true, they would illustrate only one example of many in which the U.S. has violated migrants’ human rights.
Title 42, the Migrant Protection Program, and safe third country agreements are being successfully used to significantly hinder access to the asylum procedures in the U.S. Attacks on asylum seekers' human rights will persist until the Trump administration’s goal to end migration from Central American countries and others is achieved. The asylum process is meant to create a way for people to seek refuge from harmful conditions to which they are subject in their home countries. The current process being enforced by the U.S. only further reinforces the cycle of violence by forcing asylum seekers to wait indefinitely in dangerous conditions for the slim chance that they will be able to relocate to the U.S. The US government has failed its duty to maintain safe and fair immigration proceedings for asylum seekers and other migrants alike. Migrants’ faith in the US immigration process is diminishing, and the international community should denounce the precedent the U.S. is setting for current and future migrants as the country continues its assault on their human rights.
Author
Paulina Montez is a J.D Candidate at UC Berkeley School of Law. She is interested in the intersection of international human rights law and criminal law.