Washington, DC – Every day, a set number of migrants is allowed to enter the United States through its southern border with Mexico.
Each person has an appointment, has filled out the required documents, passed a negative COVID-19 test, and most importantly, holds an exemption to a public health rule that allows the US government to quickly turn away most asylum seekers trying to enter the country.
Fifteen months ago, then-President Donald Trump invoked “Title 42“, an obscure directive that allowed migrants arriving at the border to be quickly expelled by citing the need to prevent the spread of the coronavirus.
Now, the only way to claim US asylum at the southern border is by getting an exemption – a system that immigration advocates say violates the US’s own immigration laws and fails to address the needs at the border.
“It’s a flawed process. It’s an exemption to an entirely illegal process,” said Eleanor Acer, director of Human Rights First, a US-based rights group, referring to Title 42. “It puts non-governmental organisations in a very difficult position because asylum is a governmental responsibility and our government should be performing these functions.”
Critics say Title 42 is a guise to prevent migrants from coming to the US – despite the right to seek asylum being guaranteed under international law – and health experts saying it has few public health justifications.
Immigration advocates have been calling on President Joe Biden, who since taking office in January has exempted unaccompanied children from Title 42 expulsions, to end its use entirely. But despite the pressure, as well as steadily declining coronavirus infections, the Biden administration has kept the measure in place.
More than 800,000 people have been expelled to Mexico or to their countries of origin under Title 42 since March last year, according to data from US Customs and Border Protection (CBP), forcing many asylum seekers back into danger and deterring many others from trying to seek protection.
There are currently two ways to receive an exemption to Title 42.
The first track, which allows 35 families to be let in daily, began in late March after the American Civil Liberties Union (ACLU) sued the Biden administration for its continued use of the directive. Under this programme, the ACLU collects applications from organisations working directly with migrants before submitting them to CBP for consideration.
The second track kicked off in May and allows 250 individuals who are deemed “vulnerable” to enter the US each day to pursue their claims. Six humanitarian organisations working as a consortium have been tasked with identifying the most vulnerable cases in Mexico. They then submit applications to CBP for final approval.
But that system is temporary.
“Consortium members have agreed to engage in this process on a temporary basis through July with the understanding that Title 42 will be lifted,” said Melanie Nezer, vice president of public affairs at HIAS, a Jewish-American migration assistance organisation and one of the consortium members.
“This exemption process helps some vulnerable people by getting them out of immediate danger, but this is in no way a solution for the majority of people,” Nezer told Al Jazeera.
So far, some 1,500 people have been let into the US through the consortium exemption process since May 3, according to an official with knowledge of the process who did not want to be identified over security concerns.
Lee Gelernt, deputy director of the ACLU’s immigrant rights project, said having to decide who qualifies as vulnerable under criteria established by CBP has put non-governmental organisations in a difficult and unsustainable position.
“There are some people who are getting in through the exemption process and that means lives potentially saved or severe persecution avoided, but the exemption process is no substitute for ending Title 42 because everyone needs to be allowed to apply for asylum,” Gelernt told Al Jazeera.
“It also means NGOs need to make impossible decisions about which families are more desperate than other families – that’s ultimately not a process that is sustainable,” he said.
Dulce Garcia, executive director of Border Angels, a grassroots organisation assisting migrants in the makeshift El Chaparral encampment outside the border crossing between the US and Tijuana, Mexico, said her group has helped 273 migrants enter the US since April.
But more than 2,000 people, among them hundreds of children, still live in the camp in dangerous and unsanitary conditions, she said. Many also have serious illnesses, such as cancer, and injuries including gunshot wounds and need immediate health attention.
“Some women have been abused, some raped and became pregnant from those abuses. Some endured kidnapping while they were waiting,” Garcia told Al Jazeera. “The Biden administration continues to have the doors closed to them and there’s no mechanism for them to request asylum except through these very limited applications,” she said.
‘A matter of will’
Biden administration officials argue that Title 42 is necessary to guard against the threat of COVID-19 and have indicated that the measure will remain in place as long as necessary, particularly given the fact that vaccination rates in Mexico and Central America are much lower than in the US.
“The timeline is defined by the public health imperative, pure and simple,” US Homeland Security Secretary Alejandro Mayorkas said during a June 10 news conference on immigration law. “This is not a matter of immigration policy, it’s a matter of public health requirements.”
Since Biden took office, arrivals at the US-Mexico border have reached a 20-year high. During the month of May alone, more than 180,000 migrants were apprehended at the border – the vast majority were sent back under Title 42.
The increased arrivals heaped political pressure on Biden as his rivals accused him of causing a rush to the border by doing away with Trump’s more restrictive immigration policies.
Since taking office, Biden has reversed a Trump administration directive that forced more than 65,000 asylum seekers to wait in Mexico for their US asylum court dates, allowed children travelling alone to seek asylum, and halted the construction of the border wall with Mexico that Trump said would keep migrants out.
On Wednesday, Attorney General Merrick Garland overturned two Trump-era directives that made it more difficult for victims of domestic abuse and gang violence to qualify for asylum in the US.
Despite these measures, migration advocates say Biden needs to end the use of Title 42, which has drawn international condemnation. Last month, the United Nations High Commissioner for Human Rights called on the Biden administration to end the policy and restore access to asylum.
For now, there is little indication if or when the US intends to end Title 42 expulsions or what form the US asylum system will take once it is reinstated. But immigration advocates say the situation at the border requires the Biden administration to demonstrate the “humane” policies that the US president campaigned on.
“What this Title 42 exemptions process has shown is that the government does have the capacity to process people quickly,” Garcia at Border Angels said. “No one knows what the procedures are going to look like after Title 42 is lifted,” she added, “but this has been a good pilot programme to show that people can be processed quickly. It’s just a matter of will.”