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609
AMERICAN BAR ASSOCIATION
ADOPTED BY THE HOUSE OF DELEGATES
2022 MIDYEAR MEETING
FEBRUARY 14, 2022
RESOLUTION
RESOLVED, That the American Bar Association urges the federal government to
maintain and provide to all persons seeking protection from persecution or torture
an asylum system that affords them transparency, due process, access to counsel,
and a full and fair adjudication that comports with U.S. and international law; and
FURTHER RESOLVED, That the American Bar Association urges the Executive
Branch to abandon and not resume use of Section 265 of Title 42 of the U.S. Code
by the Department of Health and Human Services and the Department of
Homeland Security to block the entry of asylum seekers at the U.S. border, to expel
them from the country without access to the asylum process, or to place them in
danger by returning them to Mexico or their home countries in violation of its
international law obligation of non-refoulement.609
REPORT
The American Bar Association has long supported policies which ensure that
asylum seekers, persons seeking protection under the Convention against Torture,
refugees, and others seeking humanitarian relief (“asylum seekers”) are given fair access
to legal protections in the United States. Since March 2020, however, the federal
government has blocked and expelled asylum seekers at the U.S. border. The
government has used the public health provisions of Title 42 of the U.S. Code for this
purpose, superseding the immigration provisions that apply under Title 8 of the U.S.
Code, which also codify international law refugee obligations. The government has
invoked the COVID-19 pandemic as the rationale for using Title 42 to block and expel
asylum seekers. However, medical and public health experts within and outside of the
government urge that preventing the entry and processing of asylum seekers does not
serve as an effective or necessary measure to address COVID-19 contagion. 1 The use
of Title 42 to block and expel asylum seekers does violate the fundamental rights of
asylum seekers not to be returned to danger, to be treated with dignity and fairness, and
to have a full and fair opportunity to seek protections established in the law. This
resolution thus urges the government to end the use of Title 42 to block and expel asylum
seekers at the U.S. border.
This report explains the need for an American Bar Association resolution
specifically urging an end to the Title 42 expulsions program. It explains the Title 42 policy
and the process that is followed when Title 42 is used to block and expel asylum seekers.
It then identifies the harms caused by the policy and the ways in which the Title 42 policy
runs counter to U.S. and international law, as well as ABA policies, without any public
health or other justification. Finally, the report describes the litigation and other
challenges to Title 42 expulsions that have not yet led to its termination.
I. The Title 42 Policy Blocking and Expelling Asylum Seekers at the
U.S. Border
In March 2020, the U.S. government announced that it would begin using a new
interpretation of a 1944 public health law, section 265 of the Public Health Service Act
1 See, e.g., Epidemiologists and Public Health Experts Implore Biden Administration to End Title 42 and
Restart Asylum, Columbia Mailman School of Public Health (Sep. 1,
2021); https://www.publichealth.columbia.edu/research/program-forced-migration-and-health/press-
release-epidemiologists-and-public-health-experts-implore-biden-administration-end-title-42; Forbes,
Fauci Says Immigrants Are ‘Absolutely Not’ Driving Covid-19 Surge: ‘Let’s Face Reality Here’ (Oct. 3,
2021);
https://www.forbes.com/sites/alisondurkee/2021/10/03/fauci-says-immigrants-are-absolutely-not-driving-
covid-19-surge-lets-face-reality-here/?sh=15f7f61e173d; Wall Street Journal, CDC Officials Objected to
Order Turning Away Migrants at Border: Trump administration said March order came from health
agency, but it was driven by White House (Oct. 3, 2020); https://www.wsj.com/articles/cdc-officials-
objected-to-order-turning-away-migrants-at-border-11601733601. See also World Health Organization,
Technical Considerations for Implementing a Risk-Based Approach to International Travel in the Context
of COVID-19 (July 2, 2021), https://www.who.int/publications/i/item/WHO-2019-nCoV-Risk-based-
international-travel-2021.1.609
(codified at 42 U.S.C. § 265) (“Title 42”), to expel asylum seekers arriving at the U.S.
border. Title 42 authorizes prohibitions on the introduction into the United States of
persons or property when the Director for Disease Control believes “there is a serious
danger” that such introduction will bring a communicable disease into the United States.
In an expedited rule published on March 24, 2020, the Centers for Disease Control and
Prevention (“CDC”) claimed authority to “suspend the introduction of persons from
designated countries or places, if required, in the interest of public health.” The CDC then
issued a series of orders, most recently on August 5, 2021, prohibiting entry and
permitting expulsion of asylum seekers arriving in the United States at or a near land
border. 2
Since March 2020, the United States has used Title 42 to close U.S. ports of entry
to many asylum seekers and to expel most non-citizens who do make their way on to
U.S. territory near the border to seek asylum. Asylum seekers subjected to Title 42 do not
have access to the U.S. asylum system. 3 The detailed provisions of the immigration law
that would normally apply to them are simply superseded by Title 42. 4 Asylum seekers
impacted by Title 42 do not receive any adjudication of their claims for protection and so
are denied the possibility of claiming asylum much less a full and fair process for
determining eligibility for protection.
Instead, such individuals are promptly returned to Mexico or expelled to the home
countries from which they fled and where they may face persecution, torture, and other
serious harm. Individuals are sent back to grave human rights situations in countries such
as Haiti and Nicaragua. In addition, asylum seekers who would be expelled pursuant to
Title 42 are not approaching U.S. ports of entry on the U.S.-Mexico border to request
protection for fear of expulsion. Unaccompanied minors now have been exempted from
the policy, 5 but expulsion under Title 42 is the general rule at the border for single adult
asylum seekers and for many family units. 6 While immigration authorities can and
sometimes do process migrants at the border under longstanding asylum law and
2 86 Fed. Reg. 42828, 42841 (Aug. 5, 2021). The notice does not specifically name asylum seekers but
rather indicates that it covers all persons who do not possess valid immigration documents and who
would otherwise be processed in congregate settings. These characteristics and the practice make clear
that the notice is directed specifically at asylum seekers as further described below.
342 U.S.C. § 265; Centers for Disease Control and Prevention, Public Health Reassessment and Order
Suspending the Right to Introduce Certain Persons from Countries Where a Quarantinable
Communicable Disease Exists, 86 Fed. Reg. 42828 (Aug. 5, 2021).
4See, e.g., 8 USC 1108; 8 USC 1235; 8 USC 1231. CDC, Media Statement: Title 42 Order
Reassessment and Exception for Unaccompanied Noncitizen Children (July 16, 2021),
https://www.cdc.gov/media/releases/2021/s0716-title-42-order.html.
5Centers for Disease Control and Prevention, Title 42 Order Reassessment and Exception for
Unaccompanied Noncitizen Children, https://www.cdc.gov/media/releases/2021/s0716-title-42-order.html.
6See CBP, Nationwide Enforcement Encounters, https://www.cbp.gov/newsroom/stats/cbp-enforcement-
statistics/title-8-and-title-42-statistics.
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procedures, they often use Title 42 to block or expel asylum seekers in the majority of
encounters.
Asylum seekers subject to Title 42 expulsions are first interviewed by a Customs
and Border Protection (“CBP”) officer at the border. They are held at a CBP station. Next,
Immigration and Customs Enforcement (“ICE”) detains migrants at a detention facility.
While in CBP and ICE custody, if requested, the government may conduct a screening to
determine whether expulsion would lead to torture in Mexico or the country of origin.
However, torture screenings rarely take place. In “September 2021 just 0.28 percent of
the individuals subjected to Title 42 have received one of these flawed and inadequate
torture screenings . . . and only eight percent passed the screenings.” 7 According to
advocates working on the Texas border, within a day or two of encountering immigration
authorities, most asylum seekers subjected to Title 42 are returned to Mexico or placed
on a deportation flight back to their country of origin. 8
In fiscal year 2021, the U.S. government used Title 42 more than 1 million times to
expel non-citizens arriving at the U.S. southern border. 9 In September 2021 alone,
approximately 100,000 migrants were expelled pursuant to Title 42. 10 Because family
units are regularly subjected to the Title 42 policy, many young children are immediately
expelled with their families. Between January and May 2021, U.S. Border Patrol agents
wielded Title 42 nearly 29,000 times to expel children under 18 at U.S. borders, including
more than 9,000 children under five, and 600 infants under one. 11
II. Impacts of Title 42 and the Resulting Violations of Rights without
Justification
The Title 42 policy causes grave harms to asylum seekers at the U.S. border. The
policy denies access to a full and fair asylum adjudication for some asylum seekers, sends
asylum seekers to danger and persecution in Mexico and the countries from which asylum
seekers originally fled, and results in abuses at the border. These egregious negative
impacts implicate violations of U.S. law, international law, and ABA standards relating to
the protections that should be provided to asylum seekers. They cannot be accepted as
a public health measure.
A. Harms Caused by the Title 42 Policy
7 Human Rights First, “Illegal and Inhumane”: Biden Administration Continues Embrace of Trump Title 42
Policy as Attacks on People Seeking Refuge Mount 2 (Oct. 2021),
https://www.humanrightsfirst.org/sites/default/files/IllegalandInhumane.pdf.
8Karla Torres-Sueiro, Senior Attorney, ProBAR, oral report at ABA Commission on Immigration Fall
Business Meeting (Nov. 4, 2021).
9CBP, Nationwide Enforcement Encounters: Title 8 Enforcement Actions and Title 42 Expulsions
https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics/title-8-and-title-42-statistics
10 Id.
11 Supra., note 8.
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The harms visited upon asylum seekers subjected to the Title 42 policy are
significant. They include: (1) denial of the right to seek and potentially obtain asylum
protection in a full and fair adjudication; (2) refoulement (return) to their home countries
where they face the possibility of persecution and torture; (3) refoulement to Mexico
where they are targeted by criminal organizations often working with Mexican government
officials and may also face further refoulement to their home countries; (4) cruelty during
processing at the border, including instances of abuse by government officials and
collateral harms such as family separation.
The use of Title 42 to block and expel asylum seekers has particularly impacted
Latin American and Haitian nationals arriving at the U.S. southern border to seek
protection in this country. The various harms suffered by asylum seekers who are denied
any opportunity to seek protection in this country thus have a racial overlay.
These harms are severe. The treatment of Haitian migrants at the Southern border
exemplifies the dangers faced by non-citizens deported without any access to
humanitarian forms of relief in the United States. In late September and early October
2021, DHS summarily expelled nearly 7,000 Haitians who had crossed the U.S.-Mexico
border near Del Rio, Texas. These expulsions were carried out despite ongoing political
strife and worsening humanitarian conditions in Haiti. The U.S. government has
repeatedly acknowledged the unsafe conditions in Haiti, including through extension of
Temporary Protected Status for Haitians who arrived in the United States before the end
of July 2021. 12 The U.S. Department of State has noted that Haiti is experiencing
widespread kidnappings, violent crime, such as armed robbery and carjacking, and
violent protests and counterprotests. 13 The Department of State has also reported
“unlawful and arbitrary killings by gangs allegedly supported and protected by unnamed
officials; excessive use of force by police; harsh and life-threatening prison conditions;
arbitrary and prolonged pretrial detention; a judiciary subject to corruption and outside
influence; physical attacks on journalists; widespread corruption and impunity; lack of
investigation of and accountability for violence against women; and the worst forms of
child labor.”14
Similarly, in September 2021, DHS expelled over 6,000 Guatemalans under Title
42. Return to Guatemala takes place despite significant human rights abuses taking place
in the country, according to the U.S. Department of State. These abuses include “unlawful
or arbitrary killings, including extrajudicial killings arranged by government officials; harsh
and life-threatening prison conditions; arbitrary arrest and detention; serious restrictions
on the press, including violence, threats of violence, or unjustified arrests or prosecutions
12 86 Fed. Reg. 41863 (Aug. 3, 2021).
13 U.S. Department of State, Haiti, Travel Advisory (August 23, 2021),
https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/haiti-travel-advisory.html.
14 U.S. Department of State, Human Rights Report, Haiti (March 2020),
https://www.state.gov/reports/2020-country-reports-on-human-rights-practices/haiti/.
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against journalists; widespread corruption; lack of investigation of and accountability for
violence against women; crimes involving violence or threats of violence targeting
persons with disabilities, members of indigenous groups, and lesbian, gay, bisexual,
transgender, and intersex persons; and use of forced labor, including child labor.”15
Asylum seekers returned to Mexico under Title 42 also face extreme violence in
that country. The U.S. State Department’s travel advisories warn U.S. citizens not to
travel to some of the same Mexican border towns where U.S. authorities send asylum
seekers back across the border pursuant to Title 42. These areas are designated as level
four threats—the same danger assessment as for Afghanistan, Iraq, and Syria. 16
Since late January 2021, there already have been more than 6,000 reports of
kidnappings, rapes, and other violent assaults, including at least one reported murder,
against individuals expelled to or blocked in Mexico due to the Title 42 policy. 17 According
to Human Rights First, which has been carefully documenting instances of violence, these
attacks include:
a young Honduran woman who was kidnapped and trafficked for sexual
exploitation for months immediately after DHS expelled her to Mexico, a
Haitian couple blocked from requesting U.S. asylum whom Mexican police
have repeatedly robbed, extorted, and threatened with deportation, a
Salvadoran family who was kidnapped and held captive in a locked storage
room for 20 days immediately after DHS expelled them to Mexico, and a
Honduran woman who was raped and sold to a cartel by Mexican
immigration officers after DHS expelled her to Juarez. 18
Unaccompanied minors are particularly vulnerable when expelled and returned to
Mexico. While the Biden Administration has declined to expel unaccompanied minors
under Title 42, it was used against this population in the previous Administration. There
have been reports of multiple children who have been raped in tent encampments in
Tijuana and Reynosa, Mexico. 19
In addition to the severe harms they may suffer in Mexico, asylum seekers forced
back to Mexico under Title 42 also face significant risk of further return to their home
15 U.S. Department of State, Human Rights Report, Guatemala (March 2020),
https://www.state.gov/reports/2020-country-reports-on-human-rights-practices/guatemala/.
16 U.S. Department of State, Mexico Travel Advisory (July 12, 2021),
https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/mexico-travel-advisory.html.
17 Human Rights First, Tracker of Reported Attacks During the Biden Administration Against Asylum
Seekers and Migrants Who Are Stranded in and/or Expelled to Mexico,
https://www.humanrightsfirst.org/sites/default/files/AttacksonAsylumSeekersStrandedinMexicoDuringBide
nAdministration.8.23.2021.pdf.
18 Human Rights First, “Illegal and Inhumane,” supra note 8, at 2.
19 Id.
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countries from Mexico. Mexican immigration authorities place expelled asylum seekers
on buses and force them across Mexico’s southern border back to the Central American
nations from which they fled. 20 Other asylum seekers pushed back into danger in Mexico
feel that they have no other choice than to return to their home countries, given the
immediate likelihood of harm in Mexico, despite the danger they face at home.
In addition to the possibility of return to danger in Mexico or the country of origin,
asylum seekers subjected to Title 42 also face direct mistreatment at the border at the
hands of U.S. immigration authorities. In late September 2021, the public was stunned
by images of U.S. Border Patrol officials chasing Haitians, including children, on
horseback. Secretary Alejandro Mayorkas suspended CBP horse patrols at the border
and indicated that an investigation into their conduct was being conducted. 21 Yet, the
mistreatment of Haitian migrants at the Del Rio border was just a widely visible example
of the abuses that occur when border authorities are empowered to expel vulnerable
asylum seekers without procedural protections.
Finally, the Title 42 policy leads foreseeably to the separation of families. In the
chaos of rapid expulsions, families often become separated from one another, particularly
where children arrive at the border with non-custodial parents. 22 In addition, because
unaccompanied minors are excluded from the Title 42 policy, some families make the
heartbreaking decision to send young children alone to the United States so that they will
not be returned to danger in Mexico or the home countries even though it means breaking
up the immediate family unit and separating young children from their parents. 23
B. Rights Impacted by the Title 42 Policy
The Title 42 policy results in violations of asylum seekers’ rights. These violations
contravene key principles of U.S. and international law as well as ABA policy. 24
20 Human Rights First, supra., note 18.
21 DHS Secretary, FBI Director and Others Testify on Global Threats to the US (September 22, 2021)
https://www.c-span.org/video/?514725-1/dhs-secretary-fbi-director-testify-global-threats-us.
22 Human Rights Watch, Q&A: US Title 42 Policy to Expel Migrants at the Border (April 8, 2021),
https://www.hrw.org/news/2021/04/08/qa-us-title-42-policy-expel-migrants-border.
23 CBS News, Over 2,100 children crossed border alone after being expelled with families to Mexico - CBS
News (May 7, 2021), https://www.cbsnews.com/news/migrant-children-left-families-asylum-border/.
24 See ABA Policies: 06M107D (providing for “a transparent, user-friendly, accessible, fair, and efficient,
and that has sufficient resources to carry out its functions in a timely manner); 90M131 (“Support a humane
and enforceable safe-haven mechanism to provide protection to persons who are unable to return to their
home countries because of conditions that endanger their safety and well-being”); and 06M107F (“Supports
the establishment of laws, policies, and practices that ensure optimal access to legal protection for
refugees, asylum seekers, torture victims, and others deserving of humanitarian refuge, including: (1)
the elimination of unduly restrictive limitations that prevent asylum seekers from initiating claims; (2) the
establishment of practices that ensure the prompt identification of asylum seekers; (3) the creation of
fair screening procedures for refugees intercepted or interdicted in order to quickly identify refugees,
asylum seekers, and torture victims; and (4) the development of refugee visa and pre-clearance
policies to assist refugees in coming to the United States”).
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The Title 42 expulsions apply specifically to asylum seekers and altogether
supersede the normal procedures and protections applicable to asylum seekers who
reach the U.S. border, resulting in denials of access to asylum and due process. A
particular focus on excluding asylum seekers is evident in the language of the CDC orders
that justify immediate expulsions on the grounds that those affected would otherwise be
“held for significant periods of time in [border] facilities” for processing. 25 Those who are
held for longer periods are those who must be referred into further proceedings under the
asylum rules. The original CDC order also specifically mentioned “asylum camps and
shelters” in Mexico in setting out the reasoning for blocking entrants from Mexico. 26
The policy thus prevents altogether the opportunity to present an asylum claim and
to receive an adjudication of that claim with due process. The Title 42 policy therefore
violates ABA policy 27 and U.S. and international law requiring that asylum proceedings
with procedural protections be made available to asylum seekers. The U.S. Immigration
and Nationality Act specifically provides:
Any alien who is physically present in the United States or who arrives in
the United States (whether or not at a designated port of arrival and
including an alien who is brought to the United States after having been
interdicted in international or United States waters), irrespective of such
alien's status, may apply for asylum. 28
However, under the Title 42 policy, asylum seekers may not apply for asylum even after
arriving at the U.S. border.
International law human rights and refugee obligations accepted by the United
States also require the processing of asylum claims presented by those reaching the
United States. 29 For this reason, multiple international human rights bodies have
expressed concern regarding the Title 42 expulsions. The United Nations High
Commissioner for Refugees took the extraordinary measure of appealing to the United
States “to swiftly lift the public health-related asylum restrictions that remain in effect at
the border and to restore access to asylum for the people whose lives depend on it, in
25 86 Fed. Reg. 42828.
26 85 Fed. Reg. 17060, 17064.
27 Supra note 24.
28 Immigration and Nationality Act [hereinafter “INA”] § 208, 8 U.S.C. § 1158.
29 U.N. Convention relating to the Status of Refugees, 189 U.N.T.S. 150 [hereinafter Refugee Convention],
as extended by the Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267 [hereinafter Refugee
Protocol]. Entered into force for the United States, Nov. 1, 1968, through accession to the Refugee
Protocol; Refugee Act of 1980, Public Law 96-212 (adopted March 17, 1980); UNHCR, Key Legal
Considerations on Access to Territory for Persons in Need of International Protection in the Context of the
COVID-19 Response (March 16, 2020), https://www.refworld.org/docid/5e7132834.html [hereinafter Key
Legal Considerations].
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line with international legal and human rights obligations.”30 The Inter-American
Commission on Human Rights has also expressed deep concern about the Title 42
expulsions and their impact on the right to access asylum proceedings. 31
In addition to denying access to asylum, the Title 42 expulsions policy results in
violations of the principle of non-refoulement, which is the obligation under U.S. and
international law not to return an individual to danger. The policy results in expulsions of
asylum seekers to Mexico where they face kidnappings, sexual assaults, and physical
violence, as described above, in violation of the principle of the non-refoulement. The
expulsions also frequently force asylum seekers directly or indirectly back to the home
countries that they fled without any assessment of the likelihood that they will face danger
upon return. Given the lack of consideration of their asylum claims, these returns must
be considered refoulement to danger. The Inter-American Commission on Human Rights
has specifically noted the high likelihood of refoulement to danger because of the Title 42
expulsions and other border policies. 32
The harsh impact of Title 42 expulsions falls on asylum seekers and those of
specific races and national origin, implicating fairness concerns. Asylum seekers are
singled out for expulsions under Title 42 while citizens and other migrants and border-
crossers do not face this impact. The policy thus denies due process to asylum seekers,
doling out the worst treatment for vulnerable asylum seekers who instead should receive
protection against automatic returns, pursuant to U.S. and international law.
In addition, the Title 42 policy operates in a discriminatory manner. The focus on
asylum seekers at the southern border means that the Title 42 expulsions primarily affect
those nationalities that reach the border to seek protection, particularly families from
Central and South America as well as Haiti. 33 Expulsions of Haitians have been
30 Statement attributable to UN High Commissioner for Refugees Filippo Grandi on the need to end US
COVID-19 asylum restrictions (May 2021), https://www.unhcr.org/en-
us/news/press/2021/5/60a687764/statement-attributable-un-high-commissioner-refugees-filippo-grandi-
need.html.
31 See Press Release: IACHR and UN's Special Rapporteur Condemn Excessive Use of Force and
Deportations of Migrants from Haiti at the United States' Southern Border (Oct. 4, 2021); Press Release:
The IACHR Expresses Concern about the Expulsion of People in a Human Mobility Context from the United
States and Mexico and Calls on States to Ensure the Effective Protection of Their Rights (Sept. 17, 2021);
Press Release: IACHR Concerned about Restrictions of the Rights of Migrants and Refugees in the United
States During COVID-19 Pandemic (July 25, 2020); Press Release: IACHR Conducted Visit to the United
States’ Southern Border (Sept. 16, 2019).
32 Press Release: The IACHR Expresses Concern about the Expulsion of People in a Human Mobility
Context from the United States and Mexico and Calls on States to Ensure the Effective Protection of Their
Rights; Press Release: IACHR Conducted Visit to the United States’ Southern Border.
33 U.S. Border Patrol Southwest Border Apprehensions by Sector,
https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters/usbp-sw-border-apprehensions;
Washington Post, Border Arrests have Soared to All-Time High, New CBP Data Shows (Oct. 20, 2021),
https://www.washingtonpost.com/national/border-arrests-record-levels-2021/2021/10/19/289dce64-3115-
11ec-a880-a9d8c009a0b1_story.html; CBP, Del Rio Experiences Increase in Haitian Immigration (Oct.
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particularly aggressive and harsh, for example. 34 The insistence on a disease-control
rationale for the expulsions also inaccurately links asylum seekers with disease in a
manner that is discriminatory and xenophobic. This linkage between race, migration, and
disease harkens back to other discriminatory policies in U.S. immigration history. 35 By
reasserting those linkages in the treatment of asylum seekers at the southern border, the
Title 42 policy injects bias into the immigration system in a manner that harms asylum
seekers as well as the credibility of the system as a whole.
Finally, the abuses carried out against asylum seekers at the southern border
violate the fundamental notion that asylum seekers should be treated with dignity and
respect and should not be penalized for seeking protection. The United Nations Refugee
Convention, which binds the United States, establishes that asylum seekers should not
be penalized for arriving in a country of potential asylum, even unlawfully. 36 Other human
rights instruments applicable in the United States also protect the rights of non-citizens to
be free from family separation and abuses, including at the border. 37 U.S. Constitutional
protections, guaranteeing the fundamental rights to life and liberty, also apply to asylum
seekers regardless of their manner of arrival in the United States. 38 The individual
instances of abuses by border authorities, the family separations resulting from the Title
42 policy, and the overall punitive impact of the policy violate the rights of asylum seekers
to be free from punishment and mistreatment.
For all of the above reasons, as a general matter, the Title 42 policy contradicts
existing ABA Policies protecting access to the U.S. asylum system. 06M107F and
20M117. Specifically, 06M107F provides:
Supports the establishment of laws, policies, and practices that ensure optimal
access to legal protection for refugees, asylum seekers, torture victims, and others
deserving of humanitarian refuge, including: (1) the elimination of unduly restrictive
limitations that prevent asylum seekers from initiating claims; (2) the establishment
of practices that ensure the prompt identification of asylum seekers; (3) the creation
of fair screening procedures for refugees intercepted or interdicted in order to
quickly identify refugees, asylum seekers, and torture victims; and (4) the
development of refugee visa and pre-clearance policies to assist refugees in coming
to the United States. 06M107F
2020), https://www.cbp.gov/newsroom/local-media-release/del-rio-experiences-increase-haitian-
immigration?_ga=2.125290058.1382072032.1636067296-1989438081.1636067296.
34 Human Rights First, “Illegal and Inhumane,” supra note 7.
35 See, e.g., Lourdes Medrano, The Myth of the Disease-Spreading Migrant (April 2020).
36Convention relating to the Status of Refugees, (adopted 28 July 1951, entered into force 22 April 1954)
189 UNTS 137 (Refugee Convention), Art. 31.
37 See, e.g., IACHR, IACHR Grants Precautionary Measure to Protect Separated Migrant Children in the
United States (Aug. 20, 2018), https://www.oas.org/en/iachr/media_center/PReleases/2018/186.asp.
38 See, e.g., Wong Wing v. United States, 163 U.S. 228 (1896); Yick Wo v. Hopkins, 118 U.S. 356 (1886).
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Further, 20M117:
Urges the federal government to maintain an asylum system that affords all persons
seeking protection from persecution or torture access to counsel, due process, and a
full and fair adjudication that comports with U.S. and international law. 20M117
C. Lack of Justification for the Harms and Violations Caused by
the Title 42 Policy
These violations of fundamental rights caused by the Title 42 expulsions cannot
be justified under the law or by any public policy goal. Title 42 was never intended by
Congress to serve as an immigration statute or to authorize expulsions from U.S.
territory. 39 The expulsions do not fall under lawful government authority and only conflict
with the U.S. and international legal norms requiring processing of asylum claims.
Nor can the Title 42 expulsions be considered a valid public health measure. The
need to control the COVID-19 pandemic is invoked to justify the expulsions policy.
However, the expulsions are not in fact necessary or effective in controlling the pandemic
as medical and public health experts have repeatedly emphasized. 40 Dr. Fauci has
specifically noted that immigrants are “absolutely not to blame” for the spread of COVID-
19 and that the Title 42 policy is not “the solution” to the pandemic. 41
The Title 42 policy is directed at asylum seekers at the border while others are
allowed to enter the United States. The Title 42 expulsions have never included U.S.
citizens, Lawful Permanent Residents, visa holders or airport arrivals, 42 and separate
guidance has allowed for continued entry into the U.S. for commerce and education
purposes. 43 However, those not covered by the Title 42 policy, including U.S. citizens,
might as easily carry and spread COVID-19 as asylum seekers. Genuine pandemic
control efforts would focus on excluding individuals based on factors relating to the
disease and its spread, such as positive testing or lack of vaccination, rather than asylum
seeker status. These efforts would also implement measures that would directly tackle
the possibility of contagion, such as quarantining border crossers in appropriate settings,
rather than detention and expulsion.
The decision to target only asylum seekers reveals that the Title 42 policy is not
motivated by public health considerations but rather by an intention to exclude asylum
seekers from the United States. Officials at the Centers for Disease Control
39 Huisha-Huisha v. Mayorkas, No. CV 21-100(EGS), 2021 WL 4206688 (D.D.C. Sept. 16, 2021).
40 See supra note 1.
41 Forbes, supra. note 1.
42 Id.
43 85 Fed. Reg. 06253 (March 24, 2020).
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acknowledged as much shortly after adopting the Title 42 expulsions orders. 44 This point
is further supported by the fact that many countries, including 20 European nations, saw
it fit to take the exact opposite approach to pandemic control. They excluded asylum
seekers from border controls that were otherwise as stringent or more stringent than
those imposed in the United States during the pandemic. 45 Because there is no public
health justification for the Title 42 policy, it should not continue in force given the serious
harms that it inflicts in violation of U.S. and international law as well as ABA policy.
III. Litigation and Other Challenges to Title 42 Expulsions
Numerous challenges to the Title 42 expulsions policy and calls for its end have
been mounted. These challenges have established the questionable legality of the
program under U.S. and international law. They have also demonstrated that the public
health logic supposedly justifying the expulsions is deeply flawed. Yet, the policy remains
in effect today.
Asylum seekers filed a series of lawsuits against the United States government,
asserting violations of domestic and international obligations to respect the right to asylum
and non-refoulement. A class of unaccompanied minor refugees first sued the Trump
administration in P.J.E.S. v. Wolf, leading a federal court to enjoin DHS from expelling
children who sought asylum without their parents. 46 The judge opined that U.S. law likely
did not authorize expulsions and that COVID-19 was an insufficient basis to violate long-
standing refugee and humanitarian protections for children. 47 While a court of appeals
later stayed this injunction, in January 2021, the incoming Biden administration created
an exception to the Title 42 policy to allow unaccompanied children to apply for asylum,
which was later formalized in July 2021. 48
Refugee families sued shortly after in Huisha-Huisha v. Mayorkas, asserting a
denial of the right of families to apply for asylum resulting from the Title 42 policy. While
the case paused for negotiations, DHS agreed to create a process that enabled non-
governmental organizations operating along the border to identify the vulnerable refugee
families – such as those in need of emergency medical care, actively hunted by gangs,
or facing heightened risk of persecution while awaiting entry – and help them to apply for
‘exemptions’ to the Title 42 expulsion policy. When negotiations broke down between the
asylum seekers and DHS in Huisha-Huisha in August 2021, DHS ended this humanitarian
44 Associated Press, Pence Ordered Borders Closed after CDC Experts Refused (Oct. 3, 2020),
https://apnews.com/article/virus-outbreak-pandemics-public-health-new-york-health-
4ef0c6c5263815a26f8aa17f6ea490ae.
45See UNHCR, Practical Recommendations and Good Practice to Address Protection Concerns in the
Context of the COVID-19 Pandemic 2 (April 9, 2020).
46 P.J.E.S. v. Wolf, 502 F. Supp. 3d 492 (D.D.C. 2020).
47Id.
48CDC, Media Statement: Title 42 Order Reassessment and Exception for Unaccompanied Noncitizen
Children (July 16, 2021), https://www.cdc.gov/media/releases/2021/s0716-title-42-order.html.
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exemption process. The federal district court presiding over the Huisha-Huisha challenge
then issued an injunction blocking the United States government from expelling refugee
families, 49 but the United States appealed this decision. The court’s order halting the
program was stayed by an appeals court pending further litigation, allowing the program
to continue. 50
In October 2021, human rights and immigrants’ rights organizations filed a request
for precautionary measures – akin to a request for injunctive relief to protect individuals
in immediate danger-- to the Inter-American Commission on Human Rights against the
United States relating to Title 42 expulsions. 51 The request pointed out the grave danger
created for asylum seekers as a result of the Title 42 expulsions policy. It asked the
Commission to seek an official end to expulsions pursuant to Title 42 and fully restore the
right of persons seeking protection to request asylum at or after crossing the U.S.-Mexico
border, including at U.S. ports of entry. The request remains pending at this time.
In addition, numerous organizations and medical professionals have urged an end
to the Title 42 expulsions policy. They have noted that the program blocks access to
asylum, results in refoulement to danger, inflicts extreme harms on asylum seekers, and
lacks any public health or other justification for these harsh consequences. In September
2021, more than 70 organizations decried the Government’s decision to appeal the ruling
of the district court in Huisha-Huisha that found Title 42 expulsion to be unlawful. They
called for an end to Title 42 expulsions and other similar policies that block access to the
U.S. asylum process at the border. 52 A number of well-respected organizations have
individually prepared reports documenting the harms caused by the Title 42 expulsions
as well. 53 And a recent New York Times Editorial Board Opinion piece also called for its
termination. 54
49 Huisha-Huisha, supra. note 40.
50 Huisha-Huisha, (D.C. Cir. Sept. 30, 2021) (Order),
https://cgrs.uchastings.edu/sites/default/files/Huisha%20cadc%20-%20stay%20order.pdf.
51Groups File Emergency Request to Inter-American Commission on Human Rights for Asylum Seekers
Expelled to Danger (Oct. 7, 2021), https://www.humanrightsfirst.org/press-release/groups-file-emergency-
request-inter-american-commission-human-rights-asylum-seekers.
52 Joint Letter to President Biden, Secretary Mayorkas, Attorney General Garland on Title 42,
https://www.humanrightsfirst.org/sites/default/files/Joint%20Letter%20to%20President%20Biden%2C%20
Secretary%20Mayorkas%2C%20Attorney%20General%20Garland%20on%20Title%2042_09172021.pdf.
53 See, e.g., Human Rights First, “Illegal and Inhumane,” supra note 8; Amnesty International, Not Safe
Anywhere: Haitians on the Move Need Urgent International Protection (Oct. 2021),
https://reliefweb.int/sites/reliefweb.int/files/resources/AMR3649202021ENGLISH.pdf; Physicians for
Human Rights, Neither Safety nor Health: How Title 42 Expulsions Harm Health and Violate Rights (July
2021), https://phr.org/our-work/resources/neither-safety-nor-health/.
54 New York Times Editorial Board, Opinion, It's Time to End the Pandemic Emergency at the Border, N.Y.
Times (Nov. 13, 2021), https://www.nytimes.com/2021/11/13/opinion/immigration-trump-biden-covid.html.
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In October 2021, 1,383 medical professionals wrote to the Centers for Disease
Control urging an end to the Title 42 border expulsions. 55 The letter highlighted the harms
experienced by expelled asylum seekers and noted that the orders issued pursuant to
Title 42 lacked “epidemiological evidence” and have “no basis in public health best
practice.” The letter followed upon prior communications from medical experts calling for
an end to Title 42 expulsions. 56
High-level government officials have also expressed deep concerns about the
lawfulness of the Title 42 expulsions and the harm caused to asylum seekers. The
problematic expulsions were invoked in two high-profile departures from the State
Department. In one of these departures, Professor Harold Koh, who was the Biden
Administration’s top political appointee in the State Department’s Office of the Legal
Adviser called the Title 42 policy “inhumane” and “illegal.” 57
Because these challenges have not resulted in an end to the Title 42 policy as
applied to asylum seekers at the U.S. border, further calls upon the U.S. government to
end the program are needed. An ABA resolution seeking an end to the Title 42 policy is
therefore necessary and appropriate.
IV. Conclusion
The application of Title 42 to expel and block asylum seekers at the U.S. border
denies access to full and equal access to asylum proceedings with due process, violates
principles of nonrefoulement, places asylum seekers in danger, and subjects them to
abuses at the border. The Title 42 policy runs counter to U.S. and international law as
well as ABA policy and is not necessary to control the COVID-19 pandemic. Accordingly,
the American Bar Association should adopt specific policy urging the Executive Branch
to end the use of Section 265 of Title 42 of the U.S. Code to block and expel asylum
seekers at the U.S. border.
551,300+ Medical Professionals from 49 U.S. States and Territories Call on CDC to End “Junk Science”
Border Expulsion Policy - Physicians for Human Rights (phr.org)
56 Letter to Secretary of Health and Human Services Alex Azar and CDC Director Robert Redfield from
Medical Leaders (May 18, 2020),
https://www.publichealth.columbia.edu/sites/default/files/public_health_experts_letter_05.18.2020.pdf;
Letter to Acting Secretary of Health and Human Services Norris Cochran and CDC Director Rochelle
Walensky from Medical Leaders (Jan. 28,
2021), https://www.publichealth.columbia.edu/sites/default/files/letter_on_cdc_order_1.28.2021.pdf;
Epidemiologists and Public Health Experts Implore Biden Administration to End Title 42 and Restart
Asylum, Columbia Mailman School of Public Health (Sep. 1,
2021), https://www.publichealth.columbia.edu/research/program-forced-migration-and-health/press-
release-epidemiologists-and-public-health-experts-implore-biden-administration-end-title-42.
57 Memo from Harold Koh (Oct. 2, 2021), https://www.politico.com/f/?id=0000017c-4c4a-dddc-a77e-
4ddbf3ae0000; see also Resignation letter to Secretary of State Anthony Blinken from Daniel Foote (Sep.
22, 2021), https://www.washingtonpost.com/context/read-resignation-letter-from-u-s-special-envoy-for-
haiti-daniel-foote/3136ae0e-96e5-448e-9d12-0e0cabfb3c0b/.
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Respectfully submitted,
Karla M. McKanders
Chair, Commission on Immigration
February 2022
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GENERAL INFORMATION FORM
Submitting Entity: Commission on Immigration
Submitted By: Karla M. McKanders
1. Summary of the Resolution(s). The resolution establishes that the use of Section 265
of Title 42 of the U.S. Code to block and expel asylum seekers at the U.S. border
prevents access to asylum with due process, leads to violations of the principle of non-
refoulement to danger, and exposes asylum seekers to abuse. The resolution would
therefore urge an end to the use of Title 42 to block and expel asylum seekers.
2. Indicate which of the ABA’s Four goals the resolution seeks to advance (1-Serve our
Members; 2-Improve our Profession; 3-Eliminate Bias and Enhance Diversity; 4-
Advance the Rule of Law) and provide an explanation on how it accomplishes this.
Goal 3-The use of Title 42 to block and expel asylum seekers has diversity
implications, as the Title 42 policy negatively affects vulnerable asylum seekers based
on their immigration status and is particularly targeted at non-citizens from particular
national origins and racial backgrounds. In addition, by conflating public health
concerns with asylum seekers, particularly from Latin America and Haiti, the Title 42
policy in place creates and reinforces negative stereotypes. By seeking an end to the
use of Title 42 to block and expel asylum seekers, the resolution would ameliorate this
discrimination by allowing an individual adjudication of eligibility for relief regardless
of place of entry or national origin.
Goal 4-The use of Title 42 to block and expel asylum seekers implicates numerous
violations of U.S. and international law norms, including the right to seek asylum, non-
refoulement obligations, due process, and equal protection. The resolution would
seek to end the Title 42 policy in place to restore the rule of law regarding processing
of asylum seekers at the border.
3. Approval by Submitting Entity. November 5, 2021.
4. Has this or a similar resolution been submitted to the House or Board previously? No
5. What existing Association policies are relevant to this Resolution and how would
they be affected by its adoption?
The resolution would augment existing ABA policy protecting access to the U.S.
asylum system by addressing the specific new problems raised by the use of Section
265 of Title 42 of the U.S. Code to block and expel asylum seekers since March 2020.
Existing ABA policy 06M107F:
Supports the establishment of laws, policies, and practices that ensure optimal
access to legal protection for refugees, asylum seekers, torture victims, and others
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deserving of humanitarian refuge, including: (1) the elimination of unduly restrictive
limitations that prevent asylum seekers from initiating claims; (2) the establishment
of practices that ensure the prompt identification of asylum seekers; (3) the creation
of fair screening procedures for refugees intercepted or interdicted in order to
quickly identify refugees, asylum seekers, and torture victims; and (4) the
development of refugee visa and pre-clearance policies to assist refugees in coming
to the United States. 06M107F
Existing ABA policy 20M117:
Urges the federal government to maintain an asylum system that affords all persons
seeking protection from persecution or torture access to counsel, due process, and a
full and fair adjudication that comports with U.S. and international law. 20M117
6. If this is a late report, what urgency exists which requires action at this meeting of
the House? n/a
7. Status of Legislation. (If applicable) n/a
8. Brief explanation regarding plans for implementation of the policy, if adopted by the
House of Delegates. The Commission on Immigration with work with the Government
Affairs Office to determine the best strategy for advocacy.
9. Cost to the Association. (Both direct and indirect costs) none
10. Disclosure of Interest. (If applicable) n/a
11. Referrals.
ROLI
International Law Section
Civil Rights and Social Justice Section
Law and National Security
Center for Human Rights
Administrative Law Section
Judicial Division
Young Lawyers Division
Senior Lawyers Division
Commission on Women
Government and Public Sector Lawyers Division
12. Name and Contact Information (Prior to the Meeting. Please include name, telephone
number and e-mail address). Be aware that this information will be available to
anyone who views the House of Delegates agenda online.) Karla M. McKanders,
karla.mckanders@vanderbilt.edu, (248) 807-1909.
13. Name and Contact Information. Please include best contact information to use when
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on-site at the meeting. Be aware that this information will be available to anyone who
views the House of Delegates agenda online. Karla M. McKanders,
karla.mckanders@vanderbilt.edu, (248) 807-1909.
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EXECUTIVE SUMMARY
1. Summary of the Resolution.
The resolution opposes the use of Section 265 of Title 42 of the U.S. Code to block
and expel asylum seekers at the U.S. border because doing so prevents access
to asylum with due process, leads to violations of the principle of non-refoulement
to danger, and exposes asylum seekers to abuse. The resolution would therefore
urge an end to the use of Section 265 of Title 42 of the U.S. Code to block and
expel asylum seekers.
2. Summary of the issue that the resolution addresses.
The U.S. government has adopted a policy that allows immigration authorities to
block and expel asylum seekers at the U.S. border pursuant to Section 265 of Title
42 of the U.S. Code, with the justification that this measure is necessary for control
of the COVID-19 pandemic. However, the measure cannot in fact be justified on
public health grounds, as exclusion of asylum seekers is not effective or necessary
for containment of contagion. The Title 42 policy not only is unjustified on public
health grounds but runs counter to U.S. and international law norms as well as
existing ABA policies requiring full and fair access to asylum proceedings. The
Title 42 policy causes grave harms to asylum seekers, which must be prevented.
It blocks access to fair asylum proceedings conducted with due process
guarantees, leads to violations of the principle of non-refoulement to danger, and
exposes asylum seekers to abuse.
3. Please explain how the proposed policy position will address the issue.
The resolution will seek the end of the use of Title 42 to block and expel asylum
seekers at the U.S. border.
4. Summary of any minority views or opposition internal and/or external to
the ABA which have been identified.
None
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