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Under Trump-era border rule that Biden has kept, few asylum-seekers can seek U.S. refuge

Trump-era policy being used to expel migrants
Trump-era border policy still being used to expel migrants from U.S. 05:32

Despite campaign promises to restore U.S. asylum, the Biden administration has expelled tens of thousands of migrants, including families with children, through a Trump-era rule that has allowed just 0.3% of those processed under it to seek refuge, according to data obtained by CBS News.

Since March 2020, U.S. border officials have used a late 19th-century public health authority to carry out more than 637,000 summary expulsions of migrants along the southern border. Of those processed under this authority, found in Title 42 of the U.S. code, only 1,897 asylum-seekers have been allowed to request protection under the United Nations Convention Against Torture.

Only 143 of the asylum-seekers screened for protection passed their interviews and were allowed to make a full case for U.S. sanctuary. Protection under the Convention Against Torture is the only humanitarian relief available to those processed under Title 42. Unlike asylum, it does not allow beneficiaries to obtain permanent legal status in the U.S. 

In the first two full months of President Biden's tenure, U.S. border officials expelled 177,000 migrants using the Title 42 authority, including more than 26,000 parents and children traveling as families, according to government statistics.

U.S. law allows anyone who sets foot on American soil to apply for asylum, a form of humanitarian refuge for those fleeing persecution based on their religion, nationality, race, political views or membership in a social group. When it invoked Title 42 last year, the Trump administration said the public health authority allowed officials to suspend U.S. asylum laws during a global pandemic, an argument the Biden administration has continued to defend in federal court.

Mr. Biden ordered a review of the Title 42 policy in February and his administration has declined to expel unaccompanied children, a practice a federal judge blocked in November after the Trump administration had expelled 15,000 of these minors to Mexico or their home countries. It has also been expelling a smaller percentage of families coming across the border; though it has blamed the shift on Mexico's reluctance to accept some young children traveling with parents in south Texas.

A migrant woman cries next to her family after being expelled from the United States under Title 42 in Ciudad Juárez, Mexico on April 5, 2021. HERIKA MARTINEZ/AFP via Getty Images

Since March 2020, 189,000 migrants have been processed under U.S. immigration laws, rather than expelled. During that time period, 16,500 migrants — or about 8.7% — have undergone "credible fear" interviews with asylum officers, according to U.S. Citizenship and Immigration Services data. The Los Angeles Times reported earlier versions of the USCIS screening data in March.     

Biden administration officials have said Title 42 will continue for the foreseeable future, noting they would like to ramp up expulsions of families amid a sharp increase in border interdictions. To that end, U.S. authorities have been flying migrant families encountered in south Texas across the border to El Paso and southern California and expelling them to Mexico from there, lawyers and officials confirmed.

Lincy, a 26-year-old Honduran mother who said she fled domestic abuse, noted she crossed the Texas border near the Mexican city of Reynosa last month alongside her 2-year-old daughter. She said U.S. officials processed them under the Anzalduas International Bridge, before transferring them to a Border Patrol facility, where they were held for four days.

Lincy said she, her daughter and other migrants were taken by bus to an airplane runway. She said they were not informed of their destination, but noted she was somewhat relieved, thinking they were being taken further inside the U.S. so they continue their immigration cases here.

However, Lincy and her toddler were flown hundreds of miles across the southern border to San Diego, where U.S. officials expelled them to Tijuana, Mexico. "They didn't give us a chance to ask for asylum," Lincy told CBS News in Spanish. "I was devastated." 

Lincy is currently staying at a shelter in Tijuana. The single mother said she plans to try to enter the U.S. again, but noted her daughter is currently sick, which she attributed to their time in Border Patrol custody.

"They are putting the families in vans, flying them across the country, expelling them and then putting them in a shelter in Mexico with hundreds of people who haven't been COVID-19 tested," Julia Neusner, a legal fellow at Human Rights First who recently interviewed Lincy and dozens of expelled Central American families in Tijuana, told CBS News. "To say that Title 42 protects public health is just absolutely absurd."

"Not the CDC's lane"

In federal court and public statements, the Biden administration has retained the Trump-era argument that the expulsions authorized by the Centers for Disease Control and Prevention (CDC) are necessary to ensure public health and avert coronavirus outbreaks inside migrant holding sites. 

"To effectively protect both the health and safety of migrants and our communities from the spread of COVID-19, individuals apprehended at the border continue to be denied entry and are returned," Department of Homeland Security (DHS) Secretary Alejandro Mayorkas said in a statement last month.

Title 42, however, was invoked over the objection of public health officials by an administration that sought to cut off access to asylum at the southern border through multiple rules and international deals.

Migration experts at the CDC refused to be involved in the expulsions order, believing there was no sound public health rationale to suspend immigration and asylum laws at the U.S.-Mexico border, former officials at the agency told CBS News. Then-CDC Director Robert Redfield ultimately signed the order in March 2020 under White House pressure, the former officials said.

"It's the easy path forward to send folks back as soon as they cross the border, instead of actually fixing the system," a former CDC official told CBS News, referring to the Biden administration's continued use of Title 42. "That's certainly not, in any realm, the CDC's lane, to fix the immigration problems that we have in this country." 

Migration From Haiti To United States
A Haitian man carries his daughter in his arms to cross the Rio Grande in Juárez, Mexico, on March 30, 2021, with the intention of requesting political asylum in the United States. David Peinado/NurPhoto via Getty Images

Instead of summarily expelling asylum applicants and migrants, public health experts have said the U.S. government should ramp up COVID-19 testing, expand shelter capacity, set up quarantine and isolation sites and surge medical resources to the southern border.

"The CDC order does not, nor was it ever intended to, protect public health," 89 public health experts wrote in a letter to CDC Director Rochelle Walensky, who has not revoked her predecessor's Title 42 edict.

The White House referred a request for comment to DHS, which did not provide any public health metrics or data to support the continued enforcement of Title 42. A CDC spokesperson similarly did not provide any public health factors the agency is considering as it continues to authorize the expulsions, saying the review of the policy "remains underway."

The CDC-authorized border policy is also at odds with United Nations legal guidance on upholding international law when processing asylum-seekers and refugees during the pandemic.

While countries can adopt policies to mitigate public health risks, like testing migrants, "such measures may not result in denying them an effective opportunity to seek asylum," the United Nations refugee agency wrote in a legal opinion on March 16, 2020, four days before the CDC invoked Title 42.

"Imposing a blanket measure to preclude the admission of refugees or asylum-seekers, or of those of a particular nationality or nationalities, without evidence of a health risk and without measures to protect against refoulement, would be discriminatory and would not meet international standards," the United Nations refugee agency wrote.

Cecilia Muñoz, a member of Mr. Biden's transition team who served as President Obama's top immigration advisor, called the debate over Title 42 a "very difficult dilemma," saying the Biden administration is focused on slowly unraveling Trump-era policies and expanding asylum processing. 

"When you're governing, it's an endless series of miserable choices — and this is clearly one of them," Muñoz told CBS News.

"My life is in danger"

As part of a lawsuit filed by the American Civil Liberties Union (ACLU) on behalf of unaccompanied children, three federal judges have determined that Title 42 does not authorize the expulsion of migrants, nor supersede laws Congress passed to offer safe harbor to people fleeing persecution.

The ACLU filed another lawsuit in January in a bid to bar the government from expelling families with children, but agreed to pause the case in late February to negotiate with the Biden administration. So far, both sides have not reached an agreement and the pause is set to expire on April 22.

"To say that we are frustrated with the pace of the negotiations would be an understatement, and are contemplating returning to court," Lee Gelernt, the lead ACLU lawyer in the cases, told CBS News. "That the number of torture screenings is so low further reveals what a sham the Title 42 process is."

When Isabela arrived at the U.S.-Mexico border in November, she was expelled to Tijuana, according to her lawyers at the Los Angeles-based Immigrant Defenders Law Center. The Guatemalan asylum-seeker, who requested her name be changed due to safety concerns, said she fled gangs members who physically assaulted her, and extorted and threatened her family.

After being turned back to Mexico, Isabela said the same gang members tracked her down in Tijuana and continued to threaten her. She said she's now in hiding alongside her partner, who was recently beaten in the Mexican border city.

Shoshana Kushner, an attorney at the Immigrant Defenders Law Center, said she filed a parole request to U.S. border officials on behalf of Isabela, submitting a package of materials, including transcripts of threats, to show her client was at risk in Mexico. The request was denied on February 25, Kushner said.

If she tries to enter the U.S., Isabela will likely be expelled again. She thought her fortunes would change for the better after Mr. Biden's inauguration, but she finds herself with the same desperation and fear she has carried since leaving Guatemala last year.

"My life is in danger in my country and here in Tijuana," Isabela told CBS News in Spanish. "The only thing I'm asking for is to be heard, so they can see the evidence that I have."

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