Human rights abuses at the border didn’t stop when Trump lost the presidency

The U.S. border has been closed to nearly all people seeking asylum for 18 months. And though outrage about conditions at the border was loud and fervent as the 2020 presidential election approached, it’s all but disappeared since then.

Here’s how it happened: In March of 2020, as the pandemic intensified, the Department of Health and Human Services issued an emergency order to implement Title 42, a section of U.S. health law. It allows DHS to prohibit the introduction of people into the country when there is a serious risk of disease spread. 

Homeland Security seized this language to justify closing the U.S. border to almost all noncitizens, even though there have been far higher COVID-19 rates in the U.S. than in Mexico and Central America, and there is no evidence that migrants are a significant source of the spread of coronavirus. 

The effect is that the border is now shuttered to hundreds of thousands of people who would otherwise be able to legally seek asylum with due process. Now, they just can’t. 

If they dare to cross the border in desperation, they are often immediately expelled into Mexico. The U.S. has executed 1 million expulsions since that March 2020 order went into effect, according to CNN. 

I am an immigration attorney who has been working with asylum-seekers on the U.S.-Mexico border since 2014. Under three different presidential administrations, I have worked inside detention centers in New Mexico and Texas, and on both sides of the southern border advising asylum-seekers of their rights. 

News reports and talking heads almost always describe these expelled people as “illegal entrants” and do not bother to clarify that crossing a border to seek asylum is fundamentally legal. It’s an exercise of a set of international rights the United States agreed to during World War II.

At a German port in 1939, over 900 Jews boarded the SS St. Louis to cross the Atlantic and seek refuge in Cuba. When they got to the island, Cuban officials refused to let the passengers disembark. The refugees pleaded with the U.S. for protection. 

The United States, too, turned them away. 

Less than a month after the SS St. Louis left, the boat and all its passengers returned to Europe. At least 250 of its passengers were killed in concentration camps. 

In the wake of the Holocaust and the failure of nations to protect people killed in that genocide, the U.S. and 148 other countries agreed to a set of principles that created a legal obligation to offer refuge to persecuted people. The underlying value of those principles is that a refugee should not be returned to a place where they will be killed or face serious harm. It’s the legal groundwork for a person to come to a shore or a border and lawfully assert the right to be screened for protection. And although it is complicated and flawed, this process has been recognized under U.S. law since 1980.

The number of people attempting to cross the U.S. border with Mexico has been at a record high this summer, spurring both the left and the right to characterize the situation as a crisis. But this problem is manufactured by our government. The United States under ex-President Trump ignored the pressure guaranteed to build by sealing off a border to refugees for 18 months. 

Republicans and right-wing media cast the situation as an invasion caused by Biden being soft on immigration and proof that we need hard-line immigration policies. 

And the Biden administration, unprepared on border issues and politically fearful, uses the idea of a developing border crisis as cover for them to continue Trump’s dangerous border strategy in violation of international asylum norms without much scrutiny from the media or the public.

Since the beginning of the pandemic, the emergency border closure has been seen as a way to  finally accomplish the Trump administration’s goal of slamming the door on immigrants and asylum-seekers alike. Shamelessly, it is championed by right-wingers as necessary to prevent the dangerous spread of a virus that they then insisted didn’t really exist in a domestic setting. 

Among border advocates, there was much hope that the Biden administration would wind down the policy in January. It didn’t happen. And then early this month, citing the dangers of the delta variant, the White House re-authorized the border closure and the expulsions. In spite of dire reports from human rights groups about the extreme violence that migrants face in northern Mexico, Homeland Security continues to send away thousands of people each day.

In fact, now rather than driving people directly back over the border, they are running expulsion flights to southern Mexico with the hope that starting from scratch at the Guatemalan border will dissuade people from making the dangerous and grueling journey again. 

Like the SS St. Louis being pushed back from safe harbor, we are driving people further and further back and saying: Not our problem. Not now. 

Our promise to protect refugees was absolute. It was etched into law because we could not trust our own morals. With this emergency order still in place under Title 42, the right to seek asylum in the United States and our commitment to the human rights of persecuted people is dead. 

Helping people in flight from danger is never convenient. It is not convenient during a serious global pandemic, and it is not convenient when midterms are coming and border issues are politically toxic to Democrats and a weird xenophobic, racist rallying call for the GOP. 

The Biden administration needs to end this ugly chapter of American history and immediately begin humanely processing asylum claims. Until this happens, U.S. officials are upholding Trump’s savage indifference to human life on the U.S. border. 

And the United States stands in shameful violation of international agreements that were beacons of hope after hideous genocide.