29 Organizations Sign on To Amici Brief Illustrating the Particular Cruelty Title 42 Inflicts on Children and Families Seeking Asylum

Brief Responds to Texas Motion to Force Title 42 to Apply to Unaccompanied Children and Families

[Update April 2022: Learn more about this case and other red state challenges to immigrant inclusive policies at JAC’s Litigation Tracker!]

On Friday night, a diverse coalition of 29 immigrants’ rights organizations filed an amici curiae (“friends of the court”) brief illustrating the particular harm and suffering Title 42—a racist Trump-era policy that uses the pretense of the pandemic to expel migrants—inflicts on children and their families. The brief was filed in response to a motion earlier this month by the State of Texas that would force the Biden administration to apply Title 42 to unaccompanied children and certain family units, returning them to the very violence and persecution from which they flee. While the amici assert that Title 42 is unlawful and should not be applied to anyone, the brief employs legal analysis and relates the traumatic experiences of asylum seekers to illustrate the exceptional vulnerability of children and their families under this policy.

Not only has Title 42 been widely condemned by human rights organizations, it has also been denounced by epidemiologists and public health experts as having no basis in science. In addition, the brief specifically argues that expelling unaccompanied children violates the Trafficking Victims Protection Reauthorization Act (TVPRA), which affords special protections to unaccompanied children in recognition of their “specialized needs” and in response to the “special obligation [of the US] to ensure that these children are treated humanely and fairly.”

The stories cited in the brief illustrate harrowing ordeals of physical and emotional trauma Title 42 has subjected children and families to, including kidnapping, rape, and other forms of violence.

One example from the brief is the story of “Luz,” a 16-year-old who fled sexual abuse in Honduras with her mother, and after a perilous, two-month long journey to the US, was expelled to Mexico, where they suffered assault and robbery by Mexican officials, and Luz was raped by a group of men.

Another story cited in the brief is that of 15-year-old “Isaías,” also from Honduras, who fled his home because of death threats by gang members. After presenting to U.S. immigration officials for asylum at the border, he was detained and put on a plane, believing to be en route to unite with a family member in New York. When he landed, he realized he was back in Honduras, and continues to experience the same violence and threats from the very gang members he had risked his life to escape.

These stories in the brief represent just a fraction of the pain and suffering the policy has inflicted upon asylum seekers since the start of the pandemic. Undoubtedly, this trauma has long-lasting effects which will be endured for decades, if not lifetimes. It is unconscionable for the State of Texas to specifically seek to subject them to the horrors of Title 42, in violation of their due process rights and our legal obligations as a nation to protect them. Amici are grateful to O’Melveny & Myers LLP for acting as pro bono counsel on this brief.

“This brief is being filed amid widespread outcry over the horrific treatment of Haitian and other asylum seekers at the border—including the expulsion of young children and families,” said Daniel Tully, counsel at Justice Action Center. “This outrage, along with ongoing calls for paths to citizenship, makes clear that a national movement for immigrant justice and dignity is well underway. It is time for President Biden and his administration to make good on its campaign promises, undo the hateful policies of the Trump administration, and build a better future for all.”

“Title 42 has caused profound harm to people desperately seeking safety at our nation’s doorstep,” said Neela Chakravartula, Managing Attorney at the Center for Gender & Refugee Studies (CGRS) and co-counsel in Huisha-Huisha v. Mayorkas, a class action lawsuit challenging Title 42 expulsions of families. “This litigation is a shameful attempt by the State of Texas to ensure the policy inflicts even more trauma on refugee children and families. But the stories presented in this brief should serve as a wake-up call for the Biden administration, too. These are the tragic and entirely predictable consequences of the administration’s decision to embrace an illegal, racist policy with no basis in public health. With the lives of children and families hanging in the balance, it is long past time for the administration to reverse course, end Title 42, and welcome people seeking asylum with dignity.”

“Families who leave everything behind to protect their children are courageous, they are human, and we welcome them. To turn them away without even asking them why they left, under the twisted and baseless pretext of protecting public health, is just sick,” said Stephen Manning, Executive Director of Innovation Law Lab. “Forcibly expelling children under Title 42 would be a major step backwards in the protection of those most vulnerable.”

“By misapplying an obscure and racist public health law, the Biden Administration is complicit in illegally violating the human rights of asylum seekers,” says Charlene D’Cruz, Director of Project Corazon at Lawyers for Good Government. “The rapid and consistent expulsions of asylum seekers to Mexico that have occurred since March 19, 2020, have put them at extremely high risk of abuse, kidnapping, rape, and other violence. The Biden administration’s failure to find a solution to ensure asylum seeker’s rights to apply for asylum, nor to continue exceptions to Title 42 for severely vulnerable asylum seekers, is a travesty.”

“Title 42 has put vulnerable migrants directly in harm’s way for the past 18 months, despite having no public health justification,” said Laura St. John, Legal Director at the Florence Immigrant & Refugee Rights Project. “The people that we meet at the Arizona-Sonora border tell us daily that they are not safe and too many of our clients have endured harmful and harrowing experiences after being turned away by U.S. border agents under this unjust and immoral provision. People fleeing harm and danger have a right to seek protection in the United States. Appallingly, the State of Texas, through this lawsuit, specifically aims to ensure that children too are indiscriminately expelled to danger and subjected to harm. And, as shocking as Texas’ efforts to enforce this cruel policy against children is, the stories in this brief demonstrate not only the inhumanity of applying this pretextual policy to children, but also that of applying it to any migrant seeking protection. Every day that this unlawful, racist policy remains in place is a stain on the Biden administration, proving that its promises to restore a safe, orderly asylum system were empty.”

Click here to read the brief and view the full list of amicus signers.

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Tasha Moro
Justice Action Center

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