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Vulnerable migrants will no longer be exempt from rapid expulsion at the border

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A large family from Michoacan, Mexico walked across the Paso del Norte international bridge into Downtown El Paso on the morning of Sept. 1, clutching papers with proof of negative COVID-19 tests and guided by representatives from local humanitarian organizations.

They were among the last groups of migrants allowed to enter the United States through an exemption to a controversial Trump-era border policy that allows the U.S. government to rapidly expel asylum seekers into Mexico. That exemption process will now end, not because of a decision by the federal government, but because a consortium of humanitarian organizations have refused to continue implementing it. 

Title 42, a section of public health code, has been used since the start of the COVID-19 pandemic to swiftly turn away asylum-seekers at the border; a practice widely condemned by immigrant advocates as placing migrants directly in harm’s way in Mexican border cities and violating their right to seek asylum. Despite calls to end the Trump-era policy, the Biden administration has indefinitely extended Title 42.

But an exemption process started in April 2021 allowed migrants deemed “vulnerable” based on certain criteria to plead their asylum cases from the safety of the United States. The 15-person family, displaced from their home in Michoacan and under threat from cartels, met that criteria. They asked to not be identified by name for fear of potential harm.

This process of identifying vulnerable asylum-seekers, carried out by a consortium of nongovernmental organizations, has come to an end as of Aug. 31, according to both Nicolas Palazzo of Las Americas Immigrant Advocacy and Omar Rios of Hope Border Institute. Vulnerability among migrants was evaluated based on factors including medical urgency, imminent risk of danger and LGBTQ+ status, Palazzo said.  Unaccompanied migrant children have been considered exempt from Title 42 and admitted into the country during the Biden administration, a change from the previous administration.

A family from Michoacan, Mexico, waited in the middle of the Paso del Norte Bridge on Sept. 1; they were among the last groups to cross through a Title 42 exemption process. (René Kladzyk/ El Paso Matters)

Information has been scant about the exemption process for migrant adults since it was initiated, with few details provided by the Department of Homeland Security about how the screening process would be conducted.

Gretchen Kuhner, director of The Institute for Women in Migration, a Mexico City-based organization that was part of the consortium, said the organizations involved have been reluctant to draw attention to it because it was not intended to be in effect for long.

“The idea behind this (Title 42 exception) process originated as something that would be short-term, because the idea in early spring of this year was that Title 42 would be ending by the summer,” Palazzo, a staff attorney for Las Americas, said. “Of course that didn’t happen because of the delta variant.”

The Department of Homeland Security did not respond to a request for comment.

Las Americas has screened 1,200 people through the exemption process, Palazzo said.

More than 940,000 people have been expelled at the border through Title 42 as of early August; the number identified as exempt has been small in comparison, with the Biden administration agreeing to admit 250 vulnerable asylum-seekers per day through the exception process.

But Palazzo said that the organizations tasked with facilitating this process decided they would no longer carry it out, both because it puts nonprofits in danger, and because it helps the Biden administration to continue implementing Title 42.

“The government would have been satisfied with extending this work, but the NGOs were being placed in an incredibly difficult position and it was just giving more fodder to the government to continue this unlawful policy,” Palazzo said. “At some point you have to take a principled stand and say that no, we’re not going to facilitate a policy that we think is inherently unlawful and incredibly harmful.”

The Institute for Women in Migration registered approximately 160 women and children for entry to the U.S. through the exemption process. Kuhner, the organization’s director, said watching the migrants arrive safely in the U.S. to work on their asylum proceedings was like “a little glimmer of what should happen” on a much larger scale. 

“It’s hard because anyone who works on issues of refugee and migrant protection wants the Biden administration to lift Title 42,” Kuhner said. “So (participating in the exemption process) puts you in a really difficult position, because if you keep facilitating some kind of exception then it’s like going against your own argument that everyone needs to have access to the asylum system in the U.S.”

Palazzo said that the process also endangered organizations, because they became seen as a ticket into the United States. The job of screening vulnerable individuals for asylum should fall on immigration officials, not humanitarian organizations, Palazzo said. 

Rios, the humanitarian support coordinator for Hope Border Institute, wasn’t sure whether the family from Michoacan would be allowed to cross that day; he had received notice that Title 42 exemptions were ending the day before, but the family had already been approved and were part of a backlog. The refugee advocacy organization that processed the family’s passage, the Hebrew Immigrant Aid Society, did not respond to an interview request. 

Victor Flores (left) of Catholic Legal Immigration Network, and Omar Rios (right) of Hope Border Institute, lead a group of migrants across the bridge from Ciudad Juárez to El Paso. (René Kladzyk/ El Paso Matters)

The family waited, standing at the middle of the bridge, for an hour before Customs and Border Protection officers eventually let them through. Rios said the wait wasn’t unusual: “It’s weird when it’s fast.”

After being processed by CBP, the family was allowed to enter the United States through the exemption. They are now able to reside in the United States while awaiting a decision in their immigration case, something that was commonplace among asylum-seekers prior to the Trump administration.  

The International Rescue Committee, one of the organizations in the consortium, stopped participating in the Title 42 exception process in July in order to take a “firm stand” in opposition to Title 42, according to a press release on the IRC website. 

“What was supposed to be a temporary measure meant to help people with serious, urgent humanitarian needs who were stuck at the U.S.-Mexico border, is now at risk of becoming a permanent practice by way of continuous extension,” Meghan Lopez, regional vice president for Latin America at the IRC, said in the press release.

Hope Border Institute was involved at the edges of the exception process, Executive Director Dylan Corbett said. He explained that the organization’s work consisted largely of guiding migrants across the bridge and assisting them once they entered the United States. 

“The Title 42 exemption process was problematic in many ways,” Corbett said. “At the same time, it was one of the few lifelines that were available for vulnerable people. And so I’m very concerned that one of the few options for genuine asylum seekers is now going to be discontinued and we’re going to have people in need of protection who are returned to places like Ciudad Juárez.”

Human Rights First has tracked more than 6,300 cases of violent attacks against migrants expelled to Mexico through Title 42 since the start of the Biden administration.

Palazzo shared Corbett’s concerns about the dangers of vulnerable people being expelled to Mexico now that the exception process has ended.

“But we can’t simply use this idea of exempting people from Title 42 as a reason or a pretext to keep the policy in place. The policy is unlawful and incredibly harmful,” he said. “We continue to operate in the context as though asylum is a privilege, but asylum is a right. … To simply outsource (asylum-seekers) to Mexico and to have people try to fight for their lives and for their asylum claims from Mexico is not only unlawful but incredibly cruel.”

Cover photo: One of the last groups of migrants to cross through a Title 42 exemption process walked across the Paso del Norte bridge to El Paso on Sept. 1. (René Kladzyk/ El Paso Matters)

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René Kladzyk

René Kladzyk is a musician and writer based in El Paso. She performs original music as Ziemba, and has written for publications including Teen Vogue, i-D, and The Creative Independent. Her new album came out on Sister Polygon Records in September 2020, and she is hopeful that we’ll be able to enjoy live music together IRL again soon enough.

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