Last Updated: July 20, 2021
For decades, people have arrived at the southern border seeking protection from persecution or state violence, and for decades we have opened our doors to help those in need. Many seek protection due to persecution due to their race, religion, nationality, political opinion, or membership of a particular social group. The number of people requesting asylum in the U.S. has fluctuated depending on what’s happening in the world. The most recent increase began in 2015 and 2016, as people fled violence in Central America and elsewhere. Since then, tens of thousands of people — including a growing number of families — have arrived in northern Mexico to seek protection in the United States.
In addition, there has been an increasing number of Black immigrants fleeing persecution from African, Caribbean and other countries who are attempting to reach the United States to seek safety. While many of those who seek protection at the southern border speak Spanish, some have other primary languages including Creole and Central American indigenous languages such as Q’Eqchi’ and Mam.
Over the past few years, access to protection in the U.S. has remained out of reach for many of those arriving at the U.S.-Mexico border, in blatant violation of U.S. law and international obligations. The Trump administration’s interlocking draconian and illegal policies forced tens of thousands of individuals and families seeking safety in the U.S. to spend years waiting in Mexico, where they struggled to access basic services and suffered grave human rights violations.
During his presidential campaign and since taking office, President Joe Biden pledged to rebuild the U.S. asylum system and restore asylum processing at the border. During his first several months as president, he signed executive orders to undo some of Trump’s policies and convened a taskforce to reunite families separated at the border during the prior administration.
Yet, access to protection at the border for those fleeing protection still remains restricted at the border, obscured by the media’s narrative of a “surge” and “crisis.” This narrative ignores the harm caused by expulsions under Title 42 and the pent-up need for asylum processing that has remained at a near total halt as a result of Biden’s unwillingness to date to change some of Trump’s policies.
Title 42 is an archaic statute that allows the government to immediately expel individuals apprehended at the border if there is a public health concern. After the prior administration implemented this policy at the onset of the pandemic, several public health officials objected, saying that asylum seekers could continue to be processed in a way that protected public health. In February, Public health officials also objected to Biden’s continued use of Title 42 to immediately expel people arriving at the border back to Mexico or to their home countries. These expulsions have disproportionately affected Black immigrants — particularly Haitians — as the Biden administration continues to rapidly expel them, including infants, back to extremely dangerous conditions.
This section gives an overview of policies towards asylum seekers at the U.S.-Mexico border and conditions for those waiting in Mexico.
Expulsions of Asylum Seekers to Danger
Over the last year, the right for asylum seekers arriving at the border to request protection in the United States––guaranteed by domestic law and our international obligations–– has been effectively suspended. In March 2020, the Centers for Disease Control (CDC), under the direction of Trump and despite objections by public health officials, issued a 30-day order under Title 42 of the U.S. Code that gave U.S. Customs and Border Protection officers the authority to rapidly expel all migrants arriving at the U.S. southern border––including those seeking asylum–– to dangerous conditions in Mexico or their home countries.
In general, individuals expelled under Title 42 do not receive a protection screening or the opportunity to request asylum, in violation of U.S. law and the international principle of refoulement that guarantee all individuals who cross the border unauthorized the right to request asylum. Very few exceptions have been made for individuals who qualify for the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Border officials have only permitted 143 asylum seekers screened for protection––a mere 0.3% of those expelled–– to request refuge.
As noted above, these expulsions have continued during the Biden administration, which has so far left this Trump-era public health order in place, with the exception of not expelling unaccompanied children. The administration has said it will continue to expel migrants, including asylum seekers, under Title 42, while it builds a humane asylum processing system. However, these Title 42 expulsions continue to be devastating to asylum seekers who face danger in Mexico and other countries of origin, including Black immigrants and families. Human Rights First has tracked 6,356 violent attacks and kidnappings of asylum seekers who have been stranded in Mexico or expelled since Biden’s inauguration.
It has been abundantly clear that political interests in cutting off access to asylum––not public health protocols–– have driven the use of Title 42. Well before the pandemic, Trump’s chief immigration advisor Stephan Miller repeatedly tried to use Title 42 to circumvent U.S. and international protection obligations in order to turn away asylum seekers at the border. Reports suggest that CDC scientists opposed the implementation of Title 42, but eventually succumbed to immense pressure from the Trump administration.
The CDC order’s stated goal was to protect CBP officers from COVID-19 exposure and to reduce the congregation of individuals, in settings such as immigration detention centers. However, over the past year, hundreds of public health experts have objected to the use of Title 42, claiming that there is no public health rationale to close our borders to asylum seekers while keeping them open to millions of other border crossers, including students, professionals and tourists. Public experts recommend that DHS implement measures such as masks, hand sanitizer, social distancing, while ramping up testing and quarantine capacity at Border Patrol stations and ports of entry.
Black immigrants –– in particular from Haiti –– have been rapidly expelled to Mexico where they face anti-Black discrimination and violence, and have been targeted by local authorities. In addition, the Biden administration has continued to send Haitians on ICE flights to Haiti, despite the fact that the country is undergoing a political uprising and immense instability in the aftermath of a natural disaster. Thanks to the hard work of advocates, such as Haitian Bridge Alliance and UndocuBlack Network, calling on Biden to fulfill his campaign promise, the administration recently re-designated Haitians for Temporary Protected Status so they can remain in safety within the U.S. However, this does not apply to Haitians who arrive after the re-designation seeking protection.
Expulsions have also affected children arriving at the border alone. Under Title 42, the Trump administration expelled over 16,000 unaccompanied children in 2020, while the Biden administration decided to halt expulsions of unaccompanied minors.
However, the Biden administration has used Title 42 to continue to expel families with children seeking protection to dangerous conditions in Mexico. In the last few months, an increasing number of families have crossed the border, following a lull last year due to the pandemic and worsening conditions in countries of origin due to the pandemic and natural disasters. The danger has forced many parents to make the heart wrenching decision to send their children to cross alone to safety in the U.S.
Yet, Mexico also has said it doesn’t have enough capacity to accept all the families expelled at the border. This has led CBP to accept some of the families into the U.S. to await their asylum proceedings, and to send some families on daily lateral flights from south Texas to other parts of the border where they are expelled to Mexico. These mass expulsions have been challenging for shelters and community organizations on the Mexican side of the border, especially in Tijuana and Ciudad Juárez, with insufficient resources or government support.
Over the past eight years, an increasing number of unaccompanied children have arrived at the U.S.-Mexico border. Between 2013 and 2014, the number more than doubled from 21,805 to 51,705. Most were from El Salvador, Guatemala and Honduras and fleeing an heightened gang violence in their regions. The number of children traveling alone have once again increased at the beginning of 2021 due to similar conditions.
Under U.S. law, unaccompanied children (UC) are children and adolescents under the age of eighteen who do not have U.S. legal status nor a legal parent or guardian. Some of these children travel to the border with relatives such as grandparents, aunts or uncles or siblings, but are separated upon arrival while in Customs and Border Protection custody. Unaccompanied children from Mexico who arrive at the border usually undergo a protection screening and then are returned back to Mexico.
CBP is required to transfer unaccompanied children within 72 hours to the Department of Health and Human Services’ Office of Refugee Resettlement (ORR). However, when ORR shelters reach capacity, children can end up staying longer in CBP facilities, which were built for short-term stays of single men and are not suitable for longer-term accommodations for children. After being placed in HHS shelters, children are released to family members within the U.S. or placed in foster care.
In the past few months, there has been an increase in the number of unaccompanied children arriving at the southern border. The Biden administration took office with greatly reduced shelter capacity due to issues related to the COVID-19 pandemic and initially struggled to provide the growing number of children with adequate care. To reduce the number of children in CBP custody, the Biden administration has worked to increase shelter capacity through the creation of temporary influx facilities and speeding up the release of children to family sponsors.
The Biden administration restarted the Central American Minors Program to allow for in-country refugee and asylum processing for children from Guatemala, El Salvador and Honduras who have parents or guardians with legal status in the U.S. This program had been created by the Obama administration in 2014, but then was terminated by the Trump administration in 2017.
Unwinding Trump’s Remain in Mexico Program
Over the past few months, the Biden administration has taken some steps to reverse the Trump administration’s extraordinary moves to severely limit asylum and deny international protection to people fleeing persecution. On his first day in office, Biden suspended new registrations to the Migrant Protection Protocols (MPP) — also known as Remain in Mexico — and later the administration officially terminated the policy. MPP forced over 70,000 asylum seekers to wait in Mexico while their cases were adjudicated in U.S. immigration courts. These asylum seekers faced severe security concerns, human rights abuses, poor living conditions, and limited access to legal counsel during the many months and in some cases years they spent in Mexican border cities.
In February, the administration announced phase one of the process to unwind the MPP program, including steps to allow asylum seekers waiting in Mexico in MPP with active immigration cases to be processed into the United States in small groups every day. Currently, a total of 26,432 asylum seekers with active cases at immigration courts along the U.S.-Mexico border are eligible for phase one of the MPP wind down. The administration has worked in collaboration with the United Nations agencies and regional welcoming task forces across the border to so far welcome over 13,000 asylum seekers who were in the MPP program into the United States for the duration of their asylum cases.
In mid June, the administration began phase two of the MPP wind down process for the over 34,500 individuals who did not attend their court date or whose cases were terminated by an immigration judge. Nearly 28,000 asylum seekers were removed “in absentia” because they missed their MPP hearing due to kidnappings by the cartels or dangerous conditions that prevented them from attending. Nearly 6,700 had their cases terminated by immigration judges, often due to CBP’s mistakes in the initial filings.
The majority of asylum seekers who were placed in MPP hailed from Central American countries.The largest population of asylum seekers were from Honduras (23,051). Similarly, a large number of Guatemalan (15,802), Cuban (11,478), and Salvadoran (8,120). While most asylum seekers in MPP spoke Spanish, some spoke other languages. Over 600 Brazilians were placed in MPP. In addition, a survey carried out by the UC San Diego U.S. Immigration Policy Center found that 13 percent of individuals in MPP that it surveyed spoke a Central American indigenous language as their primary language.
Using data from the Transactional Records Access Clearinghouse (TRAC) project at Syracuse University, we mapped out the locations where asylum seekers have been waiting in Mexico. The largest caseload was the MPP court in El Paso, Texas where nearly 23,000 people were scheduled. Some 16,500 asylum seekers enrolled in MPP were scheduled for court in Brownsville, TX — across from Matamoros, previously home to the largest refugee camp on the border.
The processing of individuals in MPP into the U.S. will likely make it easier to access legal support and win their cases. For asylum seekers forced into the MPP program, it has been very difficult to secure a lawyer from Mexico and only 7% had representation. Instead, in almost all cases (93%), the claimant is not represented. TRAC previously found that asylum seekers with legal counsel are five times more likely to win their cases. This helps explain why the probability that an asylum seeker that was forced to remain in Mexico is so low with a 1-in-100 chance of winning.
Reuniting Families Separated at the Border by Trump
In February, President Biden signed an executive order to create a multi-agency task force to investigate the Trump administration’s family separation policy that separated over 5,500 children from their parents. The task force has been working on the logistics in order to reunite the estimated 2,100 families who remain separated. In early May, the first few families were united in the U.S.
Thousands of children were ripped from their parent’s arms during the Trump administration -- endangering the children’s welfare and causing untold damage. This move was designed to act as punishment and deterrent for the growing number of asylum seekers that were showing up at the U.S.-Mexico border. The forced separations violated basic human rights and according to doctors, inflicted severe trauma and caused symptoms of depression, anxiety, PTSD and other mental health issues on the families and children affected. These separations have also been considered a form of torture because they were designed to intentionally cause severe pain and suffering.
The Trump administration began its policy of separating children from their families after adopting the draconian ‘zero tolerance’ policy in 2018, which ordered criminal prosecution of anyone who crossed a border without proper authorization (although a government report revealed that family separations began as early as 2017 in some parts of the border). This included families seeking asylum, who too often were forced to cross between ports of entry due to policies that made it extremely difficult or even impossible to seek asylum at an official port of entry. According to a recent government report, ICE officials did not give every parent the opportunity to bring their children back with them when they were removed to their countries of origin.
As a result of this cruel policy, more than 5,500 children were separated from their parents between 2017 and 2019. This figure is an undercount, however, of the total number of families torn apart, as it only includes parent-children relationships. Uncles, grandparents, or older siblings - who often act as the parents of these children - are not included in these government statistics.
Many families have since been reunited, but as of October 2020, the families of at least 545 children cannot be found by the government. This is largely due to the fact that CBP kept such poor records - or intentionally deleted them - that it made reunification almost impossible. A federal judge ordered an end to the cruel family separations at the border, and mandated that children be reunited with their families.
Public data on children who suffered a separation is limited. Available data shows, however, that a significant share (41%) of kids separated were under 10 years old when they were taken from their parents. A majority (56%), were 10 years old or older. The Texas Civil Rights Project published in October 2020, a case study of family separations in South Texas since June 2018. Their analysis of separations in the McAllen federal courthouse found that separations had continued, and the number of children separated may be larger when considering other relationships outside of the parent-child relationship.
The TCRP study — which includes separations from an adult that may be an aunt or uncle, cousin or other non-parent relationship — identified at least 939 separations in McAllen alone. Some 38% of these separations were from a parent, but at least a quarter were from an adult sibling, 19% from an aunt or uncle, and one-in-ten (8%) were from a cousin. About four-in-ten (42%) of the separations were of kids ages 13 to 17. Some 8% of the separations were of children younger than 2 years old.
On average, TCRP found that kids in McAllen were held in custody for an average 2.3 months. And based on a smaller subset of those cases, they found that in a majority of cases (55%), the accompanying adult had been deported from the U.S. In 2% of cases, a child was deported alone, and 15% of the time both the adult and child were deported together. Roughly three-in-ten (28%) children were released into the U.S. with their accompanying adult.