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Few migrants processed under Title 42 border policy are screened for U.S. protection

Out of hundreds of thousands of migrants who have been processed under a pandemic-era policy at the southern border, just over 3,200 asylum-seekers have been screened for U.S. humanitarian protection, according to unpublished government data obtained by CBS News.

Since March 2020, U.S. authorities along the border with Mexico have used a public health authority known as Title 42 to rapidly expel migrants more than 1,163,000 times without allowing them to see an immigration judge or an asylum officer, Customs and Border Protection (CBP) figures show.

As of the end of September, only 3,217 migrants processed under the public health law have been referred for interviews with U.S. asylum officers, who are charged with upholding humanitarian laws designed to prevent the government from returning people to places where they could be harmed.

These migrants received screenings that are more difficult to pass than traditional asylum interviews. They have to prove they are "more likely than not" to be tortured if expelled, which would qualify them for refuge under the United Nations Convention Against Torture, of which the U.S. is a signatory.

The Department of Homeland Security (DHS) did not address questions about how it determines who is allowed to speak to an asylum officer. According to internal policy, migrants in Title 42 proceedings have to make a "spontaneous and reasonably believable claim" that they fear being tortured in order to be screened.

Just 272 — or 8% — of the 3,217 asylum-seekers passed their interviews, according to the U.S. Citizenship and Immigration Services (USCIS) data. Convention Against Torture interviews are the only screenings available to those processed under Title 42, which bars migrants from seeking asylum. 

The new statistics show the implementation of Title 42 is inconsistent with U.S. and international refugee laws, which were created in the wake of World War II and the Holocaust to ensure countries did not summarily deport people without determining whether they could face persecution if returned.

"This is very disturbing and alarming. Migrants are being prevented from exercising a basic human right, which is to apply for asylum," Michael Knowles, president of AFGE Local 1924, a union that represents hundreds of U.S. government asylum and refugee officers, told CBS News. "Because of the way this policy is being carried out, our officers are being prevented from carrying out their mission, which is to ensure that people asking for asylum have a fair hearing and are treated humanely."

Like the Trump administration, the Biden administration has argued it can suspend these legal obligations by invoking Title 42 during a public health emergency. Citing concerns about the spread of the Delta variant of the coronavirus, the Biden administration has said the border expulsions will continue indefinitely.

A Border Patrol agent processes a group of migrants in Sunland Park, New Mexico, on July 22, 2021. PAUL RATJE/AFP via Getty Images

Even top Biden administration officials, like Homeland Security Secretary Alejandro Mayorkas, have said they would not support Title 42 if it was an "immigration policy." During an interview this week, Mayorkas said he understands the circumstances of those being expelled, citing a recent visit to the Texas border.

"It's a heartbreaking thing to see. I don't need anyone to share words to explain to me what that heartbreak is and what it means," Mayorkas told Yahoo News. "But this is what is necessary as a matter of public health imperative as ordered by the Centers for Disease Control."

In a statement, DHS said it can refrain from placing migrants in Title 42 proceedings if they have an "acute vulnerability," like a serious medical need, or if the department does not have the operational capacity to expel them. 

"Convention Against Torture (CAT) screenings for individuals processed under Title 42 do not represent the full breadth of processing mechanisms available to noncitizens to request protection at the Southwest Border," DHS said. "The totality of the circumstances in each case determines which processing pathway is used, including whether an individual is placed directly into removal proceedings."  

During President Biden's first seven months in office, U.S. border officials carried out 704,000 expulsions, 92,000 of which led to parents and children traveling as families being turned back, according to a CBS News analysis of government data. The Trump administration carried out 400,000 expulsions.

Public health experts, advocates, the United Nations, former Biden administration officials and Democratic lawmakers like Senate Majority Leader Chuck Schumer have denounced Title 42 as an illegal policy enacted under the guise of public health. Three federal judges have also concluded the policy is likely unlawful.

In November 2020, CBS News reported that Centers for Disease Control and Prevention (CDC) officials were pressured to authorize the expulsions by Trump administration political appointees, even though they did not believe there was a sufficient public health basis for such a drastic measure.

The CDC did not respond to questions about the public health conditions that would prompt the agency to rescind its Title 42 edict. A former senior DHS official called the justification for the expulsions "troubling."

"I don't think Title 42 is being used in a fair way," the official, who requested anonymity to speak candidly, told CBS News. "It suggests that the most threatening vectors of infection are coming through the southwest border. We would have seen charts. You guys would have had charts on the nightly news showing that, if that were true."

When asked about Title 42 recently, Dr. Anthony Fauci, Mr. Biden's chief medical adviser, said, "Focusing on immigrants, expelling them or what have you, is not the solution to an outbreak."

While Democratic anger over Title 42 has recently intensified due the mass expulsion of 7,000 Haitians in three weeks, Republican lawmakers have strongly criticized the Biden administration for not expelling all migrants and asylum-seekers.

Most single adult migrants continue to be expelled. But the Biden administration exempted unaccompanied children from Title 42 in February and has been processing most families with children under immigration law, largely because Mexico has refused to accept young, non-Mexican minors.

During the first seven months of the Biden administration, 541,000 migrants were processed under U.S. immigration laws, which allow them to seek asylum. Migrants who are not expelled are either detained or released into the U.S. with a notice to appear in immigration court. 

"Failing to follow through on a promise to expel or expeditiously remove migrants will only further convince them and the smuggling organizations that exploit them that the Biden Administration is not serious about enforcing our immigration laws at the southwest border," Republican senators wrote in a letter to Mayorkas this month.

The Biden administration now finds itself fighting an American Civil Liberties Union (ACLU) lawsuit that seeks to halt the expulsions of families with children, while simultaneously trying to defeat a Texas lawsuit that would force it to expel unaccompanied minors.

Lee Gelernt, an attorney leading the ACLU lawsuit, criticized the Biden administration for continuing to block migrants from seeking asylum, even as it plans in November to lift "nonessential" border travel restrictions for vaccinated travelers seeking to enter the U.S. for tourism and family visits. 

"Unlike nonessential travel, there is a legal and moral obligation to provide asylum seekers with hearings," Gelernt told CBS News.

Asked how maintaining the Trump-era expulsions squares with Mr. Biden's promise to restore U.S. asylum laws, Tyler Moran, Mr. Biden's senior adviser for migration, said Title 42 is not part of "an immigration enforcement strategy," noting the measure won't be "in place forever."

Moran said the administration is focused on creating legal avenues for immigrants to come to the U.S. as refugees or visa holders, rather than entering the country illegally, and establishing a border policy that allows those fleeing violence to secure refuge, while quickly deporting migrants who don't qualify for U.S. sanctuary. 

Likening the Biden administration's border policies to Trump-era practices, as some progressive advocates have done, is "ridiculous," Moran stressed in an interview.

"The Trump administration tear-gassed people. They intentionally took kids from their parents. They intentionally made sure there was no due process in the system. It was a policy of cruelty and fear," Moran added. "We are not doing that."

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