SAN DIEGO — Days before he was scheduled to go to the San Ysidro Port of Entry with his family to request asylum, a 7-year-old boy died in Tijuana.
The child was a client of Al Otro Lado, a legal services nonprofit that supports asylum-seekers in Tijuana. He and his family were waiting to receive exemptions to Title 42, which will soon be ending after a federal judge ordered it vacated last week.
The boy is one among many who have died waiting for it to end, said Erika Pinheiro, the organization's executive director. She said the judge's order would save lives.
Title 42 has been used by border officials to expel migrants nearly 2.5 million times since it was implemented in March 2020. The policy tells officials to send asylum-seekers back to Mexico or their home countries without doing the normally legally-required screenings to see if they qualify as refugees. The policy also closed ports of entry to asylum-seekers, and Customs and Border Protection officials have turned many away just inches from U.S. soil.
It is not clear exactly how many people the policy has affected. Many attempted to cross the border multiple times, driving up the number of expulsions. There is no count of how many asylum-seekers were turned away by CBP at ports of entry.
Both the Trump and Biden administrations said that it was necessary to slow the spread of COVID-19, but many critics, including a number of public health experts, have argued that the policy was intended to be a migration deterrent rather than a public health measure.
Critics also point to the harm caused by the policy — asylum-seekers have been frequently attacked after being turned away from the United States. From January 2021 through mid-June 2022, Human Rights First documented more than 10,300 reports of murder, kidnapping, rape, torture, and other violent attacks against people waiting in Mexico because of Title 42.
In his Nov. 15 decision to vacate the policy, U.S. District Judge Judge Emmet Sullivan in Washington, D.C., pointed to this report from Human Rights First and found that those affected by Title 42 had experienced irreparable harm. Though Sullivan intended for his order to go into effect immediately, he ultimately granted the government's request for five weeks to prepare for the transition away from Title 42, writing he was doing so "WITH GREAT RELUCTANCE."
When Abraham Suarez heard that Title 42, which had recently led to him and fellow Venezuelans being expelled, was ending, he didn't know whether he should believe the news. Once he confirmed that it was real, he said he felt a rush of relief.
"It was a light that we saw," he said in Spanish. "But it was an emotion that just as it woke up all the feelings that we could feel, immediately it collapsed on seeing that, nevermind, they had asked for five more weeks."
A 30-year-old Guatemalan man who has spent about six months in Tijuana said he shouted with joy when he heard the news. He, too, is hoping that the change is real.
He asked not to be identified because of the danger it could put him or his family in. He said that as a gay man, he experienced violence and discrimination back home, and that has continued in Tijuana.
"Mexico is not a place to come and say this is where I want to be," he said.
It's not yet clear what asylum processing will look like at the border once that order goes into effect on Dec. 21. A government memo indicates that CBP is likely to use a mobile app to help with processing, and the local port director indicated there might be a move away from detention. Asylum advocates are skeptical about whether the steps the government takes will move in a more humanitarian direction.
"There are definitely ways to make this work, to make it not chaotic, but in the past we have seen more resources used to keep them from reaching ports of entry than processing them," Pinheiro said of the government's treatment of asylum-seekers.
In the years shortly before Title 42 began, requesting asylum at ports of entry was already difficult. Officials used a policy known as "metering" to limit how many asylum-seekers were processed at a port of entry in a given day. Those who walked up to the doors guarded by CBP were turned away and told to come back another day. This led to monthslong waitlists, with Tijuana migrants using an infamous notebook to track each asylum-seeker's place in line.
Pinheiro recalled accompanying asylum-seekers to the border line before Title 42. She said CBP would ask Mexican officials to come remove them from the port's entryway. Sometimes the Mexican officials would threaten to arrest the attorneys, Pinheiro said.
CBP often cited a lack of resources, particularly capacity of its holding cells in the basement of the San Ysidro Port of Entry, as the reason for the turnbacks.
Pinheiro's organization filed a lawsuit on behalf of asylum-seekers turned away under the metering policy. In a deposition from the lawsuit, a CBP whistleblower from the Tecate Port of Entry said the government lied about its holding capacity.
Last year a San Diego federal judge ruled in asylum-seekers' favor, saying that if they were in the process of arriving on U.S. soil by approaching a port of entry, they could not be turned away. But because of Title 42, CBP has continued to justify turning them around when they approach its officers from the pedestrian line at San Ysidro.
"The reality for us is that I can never process everyone that's going to arrive at the same time," San Ysidro Port Director Mariza Marin told the San Diego Union-Tribune in September when asked about the eventual end of Title 42. "We need to focus on efficiency, on an orderly flow and processing folks in a timely manner."
Marin indicated that some of the processing delays happened because of backlogs with other agencies, such as Immigration and Customs Enforcement, which makes decisions about whether an asylum-seeker will remain detained long-term while pursuing a case.
"We really need to look holistically as a government at the rest of the pipeline and how do we avoid bottlenecks from CBP processing to the next point," Marin said.
She said she sees the way forward in how her staff processes roughly 180 asylum-seekers per day now through an exemption process to Title 42 — a program that began earlier this year to allow a limited number of asylum-seekers through the port of entry because of urgent needs. Under that system, as with the hundreds of Ukrainians processed per day earlier this year, asylum-seekers do not spend time in holding cells.
"They are provided a quiet, dignified experience and they are processed as efficiently as possible and not entering a detention setting unless there is a threat," Marin said.
In November 2021, CBP rescinded the memorandum that had officially created the metering policy and gave guidelines for asylum-seeker processing if Title 42 were to go away. It suggests in particular increased use of technology, such as CBP One, an app that allows noncitizens to submit certain information to CBP prior to their arrival. It notes though that asylum-seekers "cannot be required to submit advance information in order to be processed."
Pinheiro worries that CBP One would perpetuate some of the issues now present in the exemption process with a variety of groups controlling access to the asylum system. She said the best way to prevent issues like fraud or extortion is to have CBP officers process asylum-seekers when they walk up to the port of entry.
"Asylum-seekers can be safely processed. CBP has the capacity to do it," she said. "We saw with the Ukrainians that they can do it in an orderly way. This can be a positive for everyone."
In her September interview, Marin acknowledged there have been challenges with processing through the groups — a combination of nonprofits, churches and shelters — helping with Title 42 exemptions.
"We don't want to restrict access to this kind of legal pathway," she said. "Like everything else in Mexico, there are security challenges and concerns and so, from a CBP standpoint, our ability to increase throughput and process these folks quickly, particularly those with higher vulnerabilities, is really the key to help mitigate that threat."
Once asylum-seekers were on U.S. soil, border officials in the past used "expedited removal" to process them. That meant that unless migrants said they were afraid to return to their home countries, border officials could officially order them deported without their seeing a judge and send them from the United States back to their home countries. Those who did express fear of returning home were first screened by asylum officers. If they passed those screenings, they were placed in court proceedings to argue their asylum claims before immigration judges.
Many, particularly adults traveling without children who came through the ports of entry, were held in detention centers throughout their immigration court proceedings, and even more were held until they could pay to be released to waiting family and friends.
Private prison groups who run immigration detention facilities for ICE have long been hoping for Title 42's end in anticipation of the increased revenue it would bring. Leadership for CoreCivic, which owns and operates Otay Mesa Detention Center in San Diego, mentions this in quarterly shareholder calls.
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