Young Center Calls on the United Nations to Investigate U.S. Violations of Migrants’ and Children’s Rights under Title 42
June 2021
This month, the Young Center for Immigrant Children’s Rights called on the United Nations Special Rapporteur on the Human Rights of Migrants to fully investigate the U.S. government’s application of Title 42, a policy that expels asylum-seekers under the guise of protecting public health during the COVID-19 pandemic. We recommended that the Special Rapporteur call upon the U.S. government to immediately end ongoing Title 42 expulsions, to terminate the policies and procedures underlying Title 42, to facilitate the safe return of anyone expelled from the United States pursuant to Title 42, and to take all necessary steps to ensure that the government does not engage in the future in exclusionary policies that fail to comport with its obligations under U.S. law and international human rights standards to asylum-seekers and children.
The United States government has summarily expelled and detained migrant children during the COVID-19 pandemic under the pretense of public health.
Beginning in March 2020, the U.S. government ordered the summary expulsion of all undocumented noncitizens arriving at the border, under the guise of preventing the spread of COVID-19. This policy, known as “Title 42,” fails to screen migrants, including children, for fear of persecution or safety concerns upon expulsion or return to country of origin. The policy does not apply to other noncitizens arriving at the border. The policy has categorically denied migrants access to asylum proceedings as required by U.S. obligations under the Refugee Convention. Over 800,000 migrants have been summarily expelled under Title 42, including over 18,000 unaccompanied children and at least 34,000 children who were expelled with their parents. At least 6,500 of these unaccompanied children were returned to Mexico, even though many of them were not Mexican citizens and likely did not have someone to care for them there.
In addition, from April through September 2020, the U.S. government detained more than 577 unaccompanied children in hotels while waiting to “expel” them from the United States under Title 42. These children spent days, even weeks, in commercial hotel rooms supervised by government contractors who had no expertise in child care, development, trauma, or children’s legal rights. The Young Center worked with more than two dozen children held in these hotels; we only found out about them when frantic family members contacted us after not hearing from their children in days. In many cases, we successfully advocated for the children to be designated as unaccompanied and transferred to the custody of the federal Department of Health and Human Services’ Office of Refugee Resettlement (ORR), as required by U.S. law. Children’s advocates brought litigation in federal court to stop this dangerous practice, and a federal judge found that it violated the Flores Settlement Agreement, which sets minimum standards for the care of unaccompanied children in government custody.
The U.S. government continued its practice of deporting children at the border until a federal court enjoined Title 42 expulsions of unaccompanied children in November 2020. Under the Biden Administration, the U.S. government has continued to suspend the practice of expelling unaccompanied children, however, it government continues to expel adults and families.
The expulsion of children, families, and adults under “Title 42” and the detention of unaccompanied children in hotels during their expulsion violate international human rights standards and U.S. law.
Under U.S. refugee and immigration law and the United Nations Convention Relating to the Status of Refugees, to which the United States is party, the United States must guarantee individuals the right to seek asylum at the border or after crossing into the United States. The Convention and its 1967 Protocol are clear that states shall not “expel or return” an asylum seeker to any place where they could face serious harm amounting to persecution, otherwise known as the principle of non-refoulement. Pursuant to the United Nations High Commissioner for Refugees (UNHCR), in order to give effect to the obligation of non-refoulement, countries must “grant individuals seeking international protection access to [their] territory.” Further, under other human rights instruments, such as the Convention Against Torture and the International Covenant on Civil and Political Rights (ICCPR), to which the United States is a party, there is no exception to a state’s obligation not to return an asylum seeker to a territory where they may suffer harm that may rise to the level of persecution or torture, or in the case of the ICCPR, exposure to torture or other inhumane treatment.
Title 42’s application to children also violates international human rights standards pertaining to children. The Convention on the Rights of the Child (CRC) protects the rights of children seeking asylum. The United States is a signatory to the CRC and therefore is obligated “to refrain from acts that would defeat the object and purpose of the Convention.” Title 42 also subverts the legal obligations and due process protections that are owed to unaccompanied children under U.S. law. Pursuant to the TVPRA, when border officials encounter an unaccompanied child from a non-contiguous country, the child must be transferred into the care of ORR within 72 hours; each child has a legal right to seek protection.
International law and federal law therefore prohibit the United States from instituting a blanket ban on asylum-seekers and unaccompanied children, even during a global health crisis. Yet the Title 42 policy, issued by the United States just two weeks after UNHCR’s call for non-discriminatory border policies, is just that: a blanket measure that effectively bans all asylum-seekers and unaccompanied children from protection under the guise of “public health.”
Title 42 is a particularly egregious violation, in light of the U.S. government’s failure to offer a legitimate public health rationale to support expulsions of asylum-seekers. The anti-immigrant motivation underlying the policy is apparent from the fact that Title 42 expels undocumented non-citizens arriving by land but exempts permanent residents and U.S. citizens, and does not apply to tourists arriving by plane or ship, even though the CDC explicitly lists these modes of transportation as congregate settings with higher risk of disease transmission than land travel. The Associated Press has reported that before the CDC issued the Title 42 Order, top officials at the agency opposed it due to the lack of any evidence to support that such expulsions would slow the spread of COVID-19, and that after CDC officials refused to sign off on it, the CDC Director was politically pressured into issuing the order. In the year following the announcement of the policy, numerous medical and public health experts have publicly criticized Title 42 expulsions as based on specious justifications and failing to protect public health.
The U.S. government’s practice of detaining unaccompanied children in hotels also violated international human rights standards. The CRC prohibits the unlawful and arbitrary deprivation of a child’s liberty, requiring that a child’s detention “shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.” It further requires that “[e]very child deprived of liberty shall be treated…in a manner which takes into account the needs of persons of his or her age” and that they “shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances[.]” Under the implementation of Title 42, hundreds of children were held in unlicensed commercial hotels for more than 72 hours, in violation of the standards established under Flores. Moreover, children were placed under guard by security contractors with no training or certification in child care, development, or welfare, subjecting them to environments with a significant risk of predatory child abuse. Moreover, in violation of international human rights standards, children were held in detention incommunicado, detained in locations unknown to them and without access to the outside world, including their families, for days or weeks at a time. They were also denied access to independent Child Advocates and immigration attorneys and had no opportunity to challenge the legality of their detention.
These measures taken by the U.S. government in the context of the COVID-19 pandemic have specifically targeted and endangered asylum-seekers, particularly children and their families, in violation of international human rights standards and U.S. law. We recommend that the Special Rapporteur investigate these ongoing human rights violations and call upon the U.S. government to halt these policies immediately and prevent them in the future.
Click here to support the Young Center’s policy and advocacy work.