In Harm’s Way: How the U.S. Government Could be Liable for Migrant Disappearances Under Title 42
Asylum seekers coming to the United States fleeing violence in their home countries may face the very harm they sought to escape under immigration policies that allow the United States to ignore its own role in migrant disappearances at the border. The federal government has used an outdated public health law, commonly known as Title 42, to prevent migrants from finding safety in the United States, instead sending them to dangerous conditions on the Mexican side of the border while they await their U.S. asylum interview dates. The United States’ evasion of responsibility for the harm faced by these migrants highlights a compelling gap in the way we conceptualize responsibility for migrant disappearances on a global scale.
Under Title 42, the United States may return asylum seekers to Mexico, instead of allowing them to wait in the United States for their case to be heard. Title 42 grants the federal government the power to deny entry into the United States to stop the spread of disease and affords broad discretion to U.S. Customs and Border Protection (CBP) to swiftly expel migrants to their home country or country of most recent transit, which is usually Mexico. Since 2020, the U.S. government has used Title 42 to expel over 1.7 million migrants arriving at U.S. borders.
Those migrants who have been returned to Mexico become easy targets for violence, abductions, extortion, and ultimately disappearances perpetrated by criminal groups, usually gangs, that take advantage of these vulnerable populations as they wait in dangerous border towns to have their asylum claims assessed by the U.S. government. By sending migrants to await the protections of U.S. asylum law in border towns fraught with violence, the United States is responsible for the migrant disappearances that happen on the other side of its borders. The U.S. government should not be allowed to wash its hands of responsibility for the harm that migrants expelled under Title 42 face.
Many advocacy groups argue that the continued use of Title 42 violates the Immigration and Nationality Act, as well as the Convention Against Torture, by returning migrants to dangerous conditions in Mexico. However, the damage of this policy extends even further. By not allowing migrants to seek asylum and sending them back to danger, the United States arguably has knowingly caused the enforced disappearance of migrants seeking protection at its borders.
An enforced disappearance is defined by the International Convention for the Protection of All Persons from Enforced Disappearance as:
“The deprivation of liberty by agents of the State,” — or those “acting with the authorization, support, or acquiescence of the State” followed by the refusal to acknowledge the deprivation of liberty.”
As currently construed, the United States would not face international responsibility for the disappearances of migrants in Mexico because the United States does not exercise control over the gangs that perpetrate them. To use the language of the Convention, the gangs do not “act with the authorization, support, or acquiescence” of the United States. However, the United States knows that migrants sent to Mexico under Title 42 are regularly disappeared by gangs that the Mexican government cannot control; ample evidence from human rights groups demonstrate this.
This reality highlights a gap: The United States evades responsibility for its role in migrant disappearances by returning migrants to Mexico.
The Inter-American Court of Human Rights (the Court) has ruled on a number of cases of enforced disappearances by non-State actors with ties to the State. The Court has found that, in cases where the violation is committed by non-State actors, the State can be found culpable in those situations where it failed to diligently protect or ensure the safety and protection of the disappeared person. Put simply: a State can be responsible for disappearances if it did not diligently act to prevent non-State actors from perpetrating disappearances. These cases, however, are limited to those non-State actors who operate within the State’s own borders.
While the U.S. government should not be expected to answer for all the actions of gang members in a foreign country, its acquiescence and denial of the danger perpetuated by these groups should make them liable for these disappearances.
Mexican gang members have no ties to the U.S. government, and therefore they are not acting with the direct support of the United States. Further, under current case law, they are not acting with the acquiescence of the United States; acquiescence typically requires control over the territory and the means and ability to prevent the non-State actor’s actions, and the United States does not have that control in sovereign Mexican territory. However, the definition of enforced disappearance should not be so limited as to allow for this buck-passing to Mexican criminal organizations: The United States should not escape responsibility for sending migrants to situations where it knows these disappearances are occurring.
Although the Court has not directly addressed State liability in cross-border disappearances, it has suggested that the definition of enforced disappearance “should not be understood as encompassing all possible forms of this most serious human rights violation to the exclusion of others not specified.” This qualification demonstrates the Court’s willingness to address new manifestations of enforced disappearance and emphasizes the human rights violations at the root of enforced disappearances to which States must answer.
The disappearances of migrants expelled to Mexico are not unintended consequences of Title 42, but a direct result of it. The United States should not escape liability under international law when it knowingly puts migrants in a position where they are at risk of being disappeared by non-State actors. Doing so constitutes the United States’ acquiescence to, and therefore liability for, these occurrences.
The United States has used Title 42 to prevent migrants from remaining in the United States while they seek safety under U.S. asylum law, instead sending them to dangerous conditions in Mexico. The result of this policy is the enforced disappearance of migrants without any United States culpability. This evasion of responsibility highlights a serious gap in existing jurisprudence on enforced disappearances. The United States must be held responsible on an international scale for its role in using Title 42 to knowingly put migrants in harm’s way.
Bio: Nancy Giesel is a student attorney in the International Human Rights Clinic at Boston University. She obtained her Masters in Migration Studies from the University of San Francisco in 2019. After law school, she plans to represent asylum seekers and refugees as they seek protection in the United States.