Court filing
Appellees' Opposition to Emergency Motion for Stay — Huisha-Huisha v. Mayorkas
Filed September 23, 2021 in Nancy Huisha-Huisha v. Alejandro Mayorkas; one of 56 filings from this case.
Record facts
| Court | U.S. Court of Appeals for the D.C. Circuit |
|---|---|
| Filed | 2021-09-23 |
U.S. Court of Appeals for the D.C. Circuit · No. 1:21-cv-00100-EGS · Doc. 57-8 · 2021-09-23 · Docket on CourtListener
Full text
ORAL ARGUMENT NOT YET SCHEDULED
__________________________________________________________________
No. 21-5200
__________________________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_________________________________________________________________
NANCY GIMENA HUISHA-HUISHA, on behalf of
herself and others similarly situated, et al.,
Plaintiffs-Appellees,
v.
ALEJANDRO MAYORKAS, et al.,
Defendants-Appellants.
________________________________________________________________________________________
On Appeal from the United States District Court
for the District of Columbia
No. 1:21-cv-100
Hon. Emmet G. Sullivan
________________________________________________________________________________________
PLAINTIFFS-APPELLEES’ OPPOSITION TO DEFENDANTS-
APPELLANTS’ MOTION FOR STAY PENDING APPEAL AND
ADMINISTRATIVE STAY
_______________________________________________________________
Stephen B. Kang
Cody Wofsy
Morgan Russell
My Khanh Ngo
American Civil Liberties Union
Foundation, Immigrants’ Rights
Project
39 Drumm Street
San Francisco, CA 94111
(415) 343-0774
Lee Gelernt
Omar Jadwat
Daniel A. Galindo
Ming Cheung
David Chen
American Civil Liberties Union
Foundation, Immigrants’ Rights
Project
125 Broad Street, 18th Floor
New York, NY 10004
(212) 549-2660
lgelernt@aclu.org
Attorneys for Plaintiffs-Appellees
(Additional Counsel on Next Page)
USCA Case #21-5200 Document #1915446 Filed: 09/23/2021 Page 1 of 165
Andre Segura
Kathryn Huddleston
Brantley Shaw Drake
American Civil Liberties Union
Foundation of Texas, Inc.
5225 Katy Freeway, Suite 350
Houston, Texas 77007
(713) 942-8146
Karla M. Vargas
Texas Civil Rights Project
1017 W. Hackberry Ave.
Alamo, Texas 78516
(956) 787-8171
Jamie Crook
Blaine Bookey
Karen Musalo
Center for Gender &
Refugee Studies
200 McAllister Street
San Francisco, CA 94102
(415) 565-4877
Robert Silverman
Irit Tamir
Oxfam America
Suite 500
Boston, MA 02115
(617) 482-1211
Scott Michelman
Arthur B. Spitzer
American Civil Liberties Union
Foundation of the District of
Columbia
915 15th Street, NW, 2nd floor
Washington, D.C. 20005
(202) 457-0800
Tamara F. Goodlette
Refugee and Immigrant Center for
Legal Education and Legal
Services (RAICES)
802 Kentucky Avenue
San Antonio, TX 78201
(210) 960-3206
USCA Case #21-5200 Document #1915446 Filed: 09/23/2021 Page 2 of 165
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INTRODUCTION
Defendants claim statutory authority under 42 U.S.C. § 265 to expel
noncitizens without access to the asylum and other protections Congress carefully
guaranteed, and concede that their interpretation would permit them to expel U.S.
citizens—even though the statute does not say a word about expulsion. The
district court correctly rejected that unfounded assertion, explaining that the
expulsion power rests in the immigration statutes and that the public health law
authorizes a different set of enforcement mechanisms, namely civil and criminal
penalties. Defendants’ arguments—which address only one of three reasons their
expulsion policy is unlawful—are not likely to succeed on appeal.
The balance of harms also decidedly favors denying a stay. As the extensive
record evidence shows, Defendants are literally pushing families, including those
with very young children, into the hands of criminal cartels in Mexico. Families
are forced back over the bridges by our government while cartels stand waiting to
kidnap, assault, traffic, and rape them on the other side. See, e.g., Supp.Add.34–
36, 43–45, 54–55. One declarant testifies that more than one in five of the
migrants she works with report that they were kidnapped in Mexico, with many of
the women reporting rapes during their capture or after expulsion; another testifies
that 40% of her clients suffered an actual or attempted kidnapping (or both).
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Supp.Add.20, 57. The declarations in this case describe in vivid detail the brutality
that the Title 42 Process imposes on families.
Unsurprisingly, Defendants do not dispute that staying the injunction would
threaten the lives and safety of these families. Rather, Defendants claim that the
Department of Homeland Security (“DHS”) should be permitted to continue
expelling asylum-seeking families because of the potential risk of COVID-19
transmission. Yet as the district court, public health declarants, and the Centers for
Disease Control (“CDC”) itself explain, any such risk is the result of Defendants’
refusal to allocate resources to safely process families. Add.56.
CDC’s latest order clearly states that “the availability of testing, vaccines,
and other mitigation protocols can minimize risk” of transmission, including at
border facilities. Add.74; Supp.Add.74. Thus, as public health experts pointedly
explain, the “CDC Order is an indictment of the DHS’s yearlong failure to adopt
reasonable mitigation steps in order to safely process asylum-seeking families, and
not a conclusion by CDC that migrants present an unacceptable public health risk.”
Supp.Add.75.
Indeed, the CDC specifically explained that where the government has
chosen to “institute COVID-19 mitigation protocols,” migrants “do not pose a
significant level of risk for COVID-19 spread into the community.” Add.88
(discussing release of unaccompanied children). Thus, as the district court
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properly recognized, the problem is DHS’s refusal to allocate its substantial
resources, in excess of $80 billion, to take the recommended CDC mitigation steps.
Defendants also seek to create the misleading impression that an injunction
barring the use of Title 42 for families would result in a sea change. But
Defendants had already reduced the percentage of families expelled at the
southwest border under Title 42 to only 14% in July, demonstrating that they can
process families safely.1 Add.53–54. Thus, even assuming that additional
mitigation steps were still necessary, the injunction would necessitate the
government taking only those steps necessary to safely process the remaining small
percentage of families. Indeed, asylum-seeking families subjected to Title 42
represent only 0.1% of all the land travelers from Mexico. These other travelers,
such as commercial drivers, are permitted to enter by land without disclosing their
vaccination and testing status.
ARGUMENT
I.
DEFENDANTS ARE NOT LIKELY TO SUCCEED ON THE
MERITS.
Below, Plaintiffs raised three independently sufficient statutory arguments.
First, and most broadly, the power to prohibit “introduction” in § 265 does not
1 U.S. Customs & Border Protection, Southwest Land Border Encounters,
https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters (select
“FMUA” for “family unit aliens” in “Demographic” drown-down menu) (last
visited Sep. 19, 2021).
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authorize expulsions because it regulates only transportation providers, and not
individual travelers. Second, even if § 265 applies to both transportation providers
and individuals, it would still not authorize expulsions, because Congress nowhere
granted expulsion power, and provided instead for civil and criminal penalties, as
well as expulsions in the immigration statutes. Third, even assuming § 265 applies
to individuals and authorizes some expulsions, it cannot override the immigration
statutes’ specific mandatory protections barring the summary expulsion of those
seeking asylum or other protections. The district court rested on the second
ground, Add.41 n.6, but Defendants must show likelihood of success as to all three
to prevail.
Defendants initially make much of this Court’s prior summary stay decision
in P.J.E.S. v. Mayorkas, a challenge to Title 42 involving unaccompanied children.
Mot.3, 10. That summary order was not only non-precedential, but provided no
reasoning which could even be persuasive—particularly as the facts on the ground
have since changed, including, for example, the ready availability of vaccines.
Moreover, since that decision, the Supreme Court has emphatically rejected
Defendants’ bottom-line argument that a statute granting CDC powers must be
construed expansively to address COVID-19. As the Court explained, “the
Government’s belief that its action [is] necessary” cannot “overcome a lack of
congressional authorization.” Alabama Ass’n of Realtors v. Dep’t of Health &
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Hum. Servs., No. 21A23, 2021 WL 3783142, at *4 (U.S. Aug. 26, 2021)
(“Realtors”) (internal quotation marks omitted).
A.
Section 265 Applies Only To Transportation Providers.
As explained below, infra Part I.B., § 265 nowhere authorizes expulsions.
That congressional silence is unsurprising: In 1893, when the statute was passed,
Congress was specifically concerned with cholera coming by ships from Europe,
see 24 Cong. Rec. 359–60, 363 (1893), and sought to remedy the problem by
prohibiting transportation companies from introducing individuals into the
country. Defendants’ Title 42 expulsion policy exceeds statutory authority,
because § 265’s text regulates only transportation providers and authorizes no
direct regulation of individual travelers, much less a power to physically expel
them.2
Section 7 of the Act of February 15, 1893, ch. 114, 27 Stat. 449, 452
(Dkt.57-5, Ex.A), which the parties agree became 42 U.S.C. § 265 in 1944 without
material change, was drafted to regulate transportation entities bringing persons
and goods to the United States. Then, as now, the statute granted the “power to
prohibit, in whole or in part, the introduction of persons and property” into the
country. 27 Stat. 452 (emphasis added). The term “introduction” meant “‘the act
2 The argument that § 265 applies only to transportation providers is addressed
more fully in a historians’ proposed amicus brief filed in this Court, and in
Plaintiffs’ briefs below, Dkt.57-1 at 13–19, Dkt.118 at 6–8.
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of bringing into a country.’” Introduction, Universal English Dictionary 1067
(John Craig ed. 1861); see also Introduction, Webster’s Collegiate Dictionary 453
(1st ed. 1898) (“[t]o lead, bring, or usher in”). Introducing a person into a country
or place is an action taken by a third party—here, the transportation company.
See, e.g., Walsh v. Preston, 109 U.S. 297, 298, 314–15 (1883) (“colonization”
contract requiring party to “introduce” immigrant families into Texas was
unsatisfied, where individuals were not “brought to Texas by [the party;]” rather,
“they came and settled of their own accord”); see also Dkt.118 at 7 (other
examples).3
The statutory context reinforces this point. The Act’s other provisions were
directed at ships, see Act of Feb. 15, 1893, ch. 114, §§ 1–6, and imposed penalties
only against ships, see id. §§ 1–3 (fines for “vessel” violating Act). It did not
impose penalties on, or otherwise purport to regulate, individuals being introduced
into the country.
That silence is striking because immigration statutes in force in 1893 make
plain that Congress knew how to provide for the deportation of individuals coming
to our shores. See, e.g., Act of May 6, 1882, ch. 126, §§ 2, 12, 22 Stat. 58, 59, 61
(establishing penalties for vessels, while separately providing for unauthorized
3 Other meanings of the term “introduction,” such as introducing oneself to a
neighbor or introducing evidence in a legal case, are plainly inapposite in this
statutory context.
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immigrants “to be removed”); Act of Mar. 3, 1891, ch. 551, 26 Stat. 1084, 1086
(similar). Congress provided for removals in the immigration statutes, not in the
public health laws. Moreover, the immigration statutes not only expressly
authorized removal, but specifically authorized procedures for the prohibition and
removal of noncitizens with communicable diseases. 26 Stat. at 1084.
That § 265 was intended solely to regulate transportation providers is further
supported by its one prior similar use. President Hoover, invoking the statute in
1929, issued an Executive Order titled: “Restricting for the time being the
transportation of passengers from certain ports in the Orient to a United States
port.” Dkt.57-5, Ex.C (emphasis added). The Treasury Department issued
associated regulations “governing the embarkation of passengers and crew” and
“their transportation to United States ports.” Id. As in Realtors, Defendants’
“unprecedented” claim of expulsion power, more than a century after the statute’s
enactment in 1893, thus warrants considerable skepticism. 2021 WL 3783142 at
*2, 4.
Defendants note that Congress sought to grant power “different from”
quarantine authority in enacting the 1893 statute, suggesting this must have meant
an expulsion power. Mot.16. But the different power Congress granted was the
authority to regulate and bar transportation. Indeed, just prior to its original
enactment in 1893, the Executive, acting unilaterally, effectively halted all
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transportation of immigrants in the interest of public health, triggering a significant
debate about whether authority for such an extraordinary step existed. Twenty
Days Quarantine, N.Y. Times (Sept. 2, 1892).4 The statute was enacted to
expressly authorize just such transportation prohibitions.
In short, Congress was addressing a specific problem through tailored
means. The statute was designed to address a threat from Europe by ships, not
land migration by foot (then relatively rare). That is not to say that the statute’s
terms are limited to seafaring vessels; Section 7’s language was broad enough to
encompass other means of introducing passengers, such as trains. But the text and
context—particularly the use of “introduction”—limited the statute to the
regulation of transportation providers. The same is true of today’s materially
identical statute, which applies to modern air travel.
B. The District Court Correctly Held That Section 265 Does Not Authorize
Expulsions, Even Assuming It Applies Beyond Transportation
Providers.
1. When Congress wants to authorize physical removal, it knows how, and
does so “plainly.” Add.35; see also J.B.B.C v. Wolf., 2020 WL 6041870, at *2
(D.D.C. June 26, 2020) (Nichols, J.) (same); 8 U.S.C. §§ 1231, 1225(b)(2)(c). And
Congress does so clearly in all contexts, not just, as Defendants suggest, in
4 https://www.nytimes.com/1892/09/02/archives/twenty-days-quarantine-the-
government-takes-decisive-action-a.html.
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“immigration law.” Mot.14; see, e.g., 18 U.S.C. §§ 3185, 3186, 3196 (extradition
authority); Add.35.5 Yet § 265’s text says nothing about the power to physically
expel. Thus, even if the statute directly regulates both transportation providers and
individual travelers, it lacks the type of clear statement found when Congress
intends to grant an expulsion power. Add.39–40.
The statutory context reinforces the textual lack of expulsion authority.
Even as it addresses “various public health measures,” “the statute as a whole does
not contain a word about the power of the CDC to expel anyone.” Add.37–38
(cleaned up). Indeed, a neighboring provision laying out “specific ‘penalties’” for
violations of § 265 makes no mention of expulsion, instead authorizing civil fines
and imprisonment. Add.37 (quoting 42 U.S.C. § 271). Quarantine powers are also
available. 42 U.S.C. § 264. Nowhere does the scheme mention expulsion.
Defendants urge that a “statute prohibiting persons from entering certain
protected areas is most naturally read to include . . . the power to expel.” Mot.12;
see id. at 15. That is wrong, as illustrated by the many statutes which prohibit
entry and explicitly authorize physical removal. Add.35, 40. And Defendants do
not point to a single example of silent authorization of expulsion. They claim that
the “authority to ‘prevent [a dangerous] individual from boarding an aircraft,’”
5 Contrary to Defendants’ suggestion, Mot.14–15, courts “routinely point[] to other
statutes as evidence that Congress knows how to legislate in particular ways,”
Add.40–41 n.5.
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must also “authorize the individual’s removal.” Mot.13 (quoting 49 U.S.C.
§ 114(h)(3)(B)). But that statute addresses not only preventing boarding but also
“other appropriate action with respect to that individual.” Defendants likewise cite
a rulemaking discussing the re-exportation of property, arguing such power is
granted by § 265. Mot.12–13. But whatever its validity, that rulemaking relied on
other authority in addition to § 265, including express authority for “destruction”
and “other measures” to deal with dangerous “animals or articles.” 42 U.S.C.
§ 264(a); see 82 Fed. Reg. 6890, 6929 (Jan. 19, 2017) (“re-exportation, or
destruction”).
The implications of Defendants’ position underscore that Congress did not
authorize expulsions in the public health laws. Defendants have conceded that, on
their interpretation, § 265 provides authority “to expel even U.S. citizens.”
P.J.E.S. v. Wolf, 502 F. Supp. 3d 492, 539–40 (D.D.C. 2020) (noting concessions).
As in Realtors, the implications of their arguments are thus “breathtaking,” 2021
WL 3783142 at *3, undercutting Defendants’ assertion that the statute silently
provides the extraordinary authority to expel, cf. Valentine v. United States ex rel.
Neidecker, 299 U.S. 5, 11–12 (1936) (rejecting implicit extradition power because
not “affirmatively granted”). It makes no difference that the current Title 42 policy
exempts citizens. “[T]he breadth of the [government’s] asserted authority is
measured not only by the specific application at issue, but also by the implications
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of the authority claimed.” Merck & Co. v. U.S. Dep’t of Health & Human Servs.,
962 F.3d 531, 541 (D.C. Cir. 2020); see Realtors, 2021 WL 3783142, at *3
(similar). Those implications are magnified here because the claimed power to
summarily expel citizens raises grave constitutional questions. See P.J.E.S., 502 F.
Supp. 3d at 540.
2. Defendants argue that Congress must have intended to grant an expulsion
power notwithstanding the statute’s silence because otherwise the statute would be
illogical and ineffectual. Yet Realtors emphasized that if the Executive believes it
needs greater statutory authority, it must seek such power from Congress. 2021
WL 3783142, at *4. In any event, Defendants’ claim that the district court’s
interpretation of the statute renders it ineffectual is wrong and based on a
misunderstanding of the statutory scheme and the co-existing immigration laws.
Defendants contend that the “introduction” of persons into the country is a
“continuing process” that goes on even after a person passes the border, and that
the district court’s interpretation leaves them “without authority to halt a
continuing violation” once an individual is on U.S. soil. Mot.11, 13. But
assuming, as the district court did, that the statute even applies to individual
travelers (rather than solely to transportation providers), the court never denied that
“the process of introduction can be halted” after a person crosses the border.
Add.41. The issue is one of enforcement mechanisms. Assuming it applies to
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individual travelers, § 265 authorizes criminal and civil penalties for those who
enter in violation of an order. Add.37. “[A]gencies are bound, not only by the
ultimate purposes Congress has selected, but by the means it has deemed
appropriate, and prescribed, for the pursuit of those purposes.” Merck, 962 F.3d at
536 (internal quotation marks omitted).6
Furthermore, that Title 42 does not authorize expulsions does not mean that
the Executive branch lacks the power to remove those who cross the border. The
immigration laws enacted alongside the public health laws in the late 1890s, as
well as contemporary immigration laws, provide that power. And, even before the
statute here was enacted in 1893, the immigration statutes expressly included
inadmissibility provisions specifically addressing “communicable diseases,” with
accompanying procedural safeguards to balance the competing goals of fairness
and public safety. Add.35–36; 26 Stat. at 1085; see 8 U.S.C. §§ 1182(a)(1), 1222.
Alongside the various other immigration tools, recent arrivals without
documentation can be subjected to “expedited removal” proceedings. See 8 U.S.C.
6 Defendants relatedly suggest that the statute allows the government to physically
block a person’s introduction at the border, so it must also allow expulsion.
Mot.15. But the power to expel is far more extreme than the power to block
entrance. Thus, the statute would not be illogical even if construed to foreclose
only expulsions. In any event, § 265, by its terms, provides no authority to
physically block entry into the country. Rather, under the express statutory remedy
provisions, § 265 orders are enforceable by arrest, imprisonment, and fine. To the
extent Defendants may block entry into the country, that power would come from
other authorities, like the immigration laws.
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§ 1225(b)(1). Individuals entering from a foreign country can also be detained,
examined, and quarantined under the public health laws, 42 U.S.C. § 264(c).
Moreover, § 265 provides vast additional authority by permitting such
extraordinary steps as, for example, a suspension of flights from an entire country
(analogous to the 1929 Order). In conjunction with the various other public health
and immigration powers, § 265 is thus a powerful tool. These are the means
Congress chose to effectuate public health, not summary expulsions.
C. Even Assuming Section 265 Permits Expulsions of Some Persons, It
Does Not Override Mandatory Statutory Humanitarian Protections.
Finally, the Title 42 policy is still unlawful even if § 265 applies beyond
transportation providers and allows the expulsion of some individuals. Congress
has carefully provided procedures for noncitizens seeking asylum or other
protections in the United States. § 265 does not allow Defendants to cast those
protections aside. See P.J.E.S., 502 F. Supp. 3d at 515, 540–42; J.B.B.C., 2020
WL 6041870, at *2 (Nichols, J.).7
Because Defendants are arguing that § 265 permits them to “override[]”
other legislation, they “bear[] the heavy burden of showing a clearly expressed
congressional intention that such a result should follow.” Epic Sys. v. Lewis, 138
7 This argument is addressed more fully in proposed amicus briefs filed in this
Court by refugee and immigration law scholars, and by the International Refugee
Assistance Project.
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S. Ct. 1612, 1624 (2018) (cleaned up). Yet Defendants do not even mention these
humanitarian statutes in their stay papers, despite advancing an expulsion system
that “tramples the work done” by the immigration laws. Id. at 1627; see P.J.E.S.,
502 F. Supp. 3d at 541–42 (finding “the vague language of Section 265”
insufficient).
The immigration laws “speak[] directly” to “the question before [the
Court],” Epic Sys., 138 S. Ct. at 1631, and entitle noncitizens to a screening for
asylum and other forms of protection, Add.4–5. Critically, there is no exception
for public health in the asylum laws. Even if there were a conflict with § 265, the
mandatory and later-enacted immigration protections would prevail. See
Radzanower v. Touche Ross & Co., 426 U.S. 148, 153–54 (1976); Chicago & N.W.
Ry. Co. v. United Transp. Union, 402 U.S. 570, 582 n.18 (1971).
D. Deference Is Unwarranted.
The district court correctly concluded that Defendants’ asserted expulsion
power is not entitled to Chevron deference. See Add.42–43; see also J.B.B.C.,
2020 WL 6041870, at *2. First, CDC “hasn’t just sought to interpret [§ 265] in
isolation,” but rather “has sought to interpret [it] in a way that limits the work of a
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second statute.” Epic Sys., 138 S. Ct. at 1629. Such “reconciliation of distinct
statutory regimes is a matter for the courts, not agencies.” Add.42 (cleaned up).
Second, deference is unwarranted at Chevron’s first step, id., because it is
foreclosed by “the traditional tools of statutory interpretation—including the
statute’s text, history, structure, and context.” Loving v. IRS, 742 F.3d 1013, 1021–
22 (D.C. Cir. 2014).
Third, even if the Court reached Chevron’s second step, Defendants’ claim
that deference is warranted in light of CDC’s “scientific and technical expertise”
(Mot.17) is wrong. CDC’s judgment might impact what power it thinks is needed,
but Defendants have not “explained how [CDC’s] scientific and technical expertise
would lead it to interpret ‘introduction’ to encompass ‘expulsion’”—a purely legal
question of statutory interpretation. Add.43; see NRDC v. Daley, 209 F.3d 747,
755–56 (D.C. Cir. 2000) (refusing to defer to scientific expertise where agency
never explained how it informs statutory interpretation).
II.
THE EQUITIES WEIGH STRONGLY AGAINST A STAY.
Defendants do not contest that staying the injunction would impose life-and-
death consequences on families. Nor could they, as the district court cited
overwhelming, unrebutted evidence that U.S. Customs and Border Protection’s
(“CBP”) expulsion practices effectively deliver vulnerable families into the arms
of kidnappers waiting for them in Mexico. Add.47; e.g., Supp.Add.25 (“CBP has
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routinely expelled my clients, including newborns, into the waiting arms of
kidnappers . . . .”), 35 (mother and seven-year-old daughter “kidnapped
immediately after DHS expelled them to Juárez,” held captive for two months, and
deprived of food and water), 36 (mother “who was raped in the street in Tijuana
after DHS expelled her there with her three young children”), 44 (body of 15-year-
old son found mutilated after initial expulsion and second attempt to cross). These
stories are too common—advocates report 20–40% of their clients are victims of
actual or attempted kidnappings in Mexico. Supp.Add.20, 57. Another declarant
tracked 3,250 kidnappings and other attacks during one six-month period.
Supp.Add.34.
In addition to the harms inflicted when families are expelled across the
border into Mexico, the district court also correctly concluded that families suffer
similar irreparable harms when expelled to their home countries, which “are
among the most dangerous in the world due to gang, gender, family membership,
and other identity-based violence.” Add.44,52; Supp.Add.3–4, 7–14, 18.8
Though Defendants suggest that some families can apply for a “case-by-case
exception[]” from Title 42, Mot.21, there is currently no meaningful mechanism
for families to do so because the formalized exception process ceased operating as
8 The recent Title 42 expulsions from the Del Rio, Texas bridge are yet another
example of the harm caused by the policy given the extreme unrest and danger in
Haiti.
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of September 1, 2021.9 In any event, the ad hoc selection of some individuals,
often after they have already been kidnapped or harmed following expulsion,
cannot substitute for an asylum system. E.g., Supp.Add.60.10
Defendants nonetheless argue that the balance of harms favors them and
seek to create the misimpression that the injunction completely alters the
landscape. Mot.18–19. Yet Defendants were already processing approximately
86% of migrant families into the United States—largely because the Mexican
government will not accept the return of all families in certain regions. Add.53;
see also Mot.19; Add.86. DHS’s own declarant testified that, in response to those
regional Mexican policies, the agency developed systems for “testing, isolation,
and quarantine” in coordination with nongovernmental, local, and state entities,
which receive migrant families upon their release from CBP. Add.64 ¶9; Add.93.
Admitting the remaining 14% of families (which would represent 0.1% of border
traffic and 5% of migrant encounters) would not impose a drastic additional
burden. Add.93; Supp.Add.129–30.
9 El Paso Matters, Vulnerable migrants will no longer be exempt from rapid
expulsion at the border (Sep. 7, 2021), https://tinyurl.com/4cds79ba; AP,
Advocates end work with US to pick asylum-seekers in Mexico (July 31, 2021),
https://tinyurl.com/2756ze39.
10 Defendants argue that fewer families will suffer harm if the appeal is expedited.
Mot.3. But that is cold comfort to the families who will be expelled while the
appeal is pending.
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Indeed, as dozens of public health experts emphasize, mitigation measures,
such as testing and vaccinations, are now readily available and effective at
preventing COVID-19 transmission, including in border facilities. Supp.Add.75
(citing CDC Order at Add.74). And despite Defendants’ heavy reliance on the
recent CDC Order, Mot.21-22, the CDC did not conclude that migrant families
present an unacceptable health risk. Rather, the CDC Order confirms that “the
primary reason that asylum-seeking families are still being subjected to Title 42 is
because of DHS’s failure to expand available mitigation measures.” Supp.Add.75
(citing CDC Order at Add.93); see also Add.80 (CDC Order explaining that
“[w]ith the additional testing capacity available through antigen tests, rapid testing
can be implemented to identify infected persons so they can be isolated.”), 93
(CDC Order suggesting that migrant families could be exempted from Title 42
once DHS expands “testing, consequence management, and eventually
vaccination” programs); Supp.Add.76–79 (32 public health experts explaining that
“[b]y combining multiple strategies, including vaccinations, testing, masking,
ventilation, and sanitizing, [CBP] can safely process asylum-seeking families while
minimizing transmission of COVID-19.”), 68–70 (former CDC officials explaining
that “immigrant families subject to Title 42 are not a significant source of COVID-
19 in the United States.”), 114–16 (Doctors Without Borders explaining mitigation
at strategies at border).
USCA Case #21-5200 Document #1915446 Filed: 09/23/2021 Page 20 of 165
19
The district court was thus correct that this case is ultimately about DHS’s
refusal to allocate resources to safely process asylum seekers. See Add.56
(“Indeed, the government has successfully implemented mitigation measures with
regard to processing unaccompanied minors in order to minimize risk of COVID-
19 transmission.”).
Defendants also raise potential harm to DHS personnel and other individuals
in the United States, but adults (including DHS officers) and adolescents have
access to free and widely available vaccines. Supp.Add.65–66. As the public
health officials explain, the unvaccinated constitute the overwhelming majority of
those at risk for serious illness. Id.; see also Add.81 (CDC explaining that
“breakthrough” infections rarely cause illness).
Defendants argue that “vaccines and testing do not sufficiently mitigate”
infection risk because many families “originate from countries with ‘markedly
lower vaccination rates’” and positivity rates have recently increased. Mot.18. But
Defendants ignore the evidence in this case showing that only 1.14% of migrant
families who were permitted to enter the United States tested positive for COVID-
19. Supp.Add.106, 131–34, 21.
Defendants also ignore the fact that these asylum-seeking families subjected
to Title 42 equal a tiny fraction (1/1000) of all the travelers Defendants permit to
enter from Mexico at land ports, such as business and delivery travelers, and that
USCA Case #21-5200 Document #1915446 Filed: 09/23/2021 Page 21 of 165
20
this exponentially larger group is not required to disclose their vaccination and
testing status. See Supp.Add.123, 129–30. To the extent that some migrants are
not vaccinated, that is further reason to offer vaccines, per the CDC’s and public
health experts’ recommendation. See Add.93; Supp.Add.68–69, 76–77, 115
(describing unused vaccine doses that can be re-routed to migrants).11
Defendants also do not address the district court’s finding that DHS’s
expulsion practices likely increase transmission. Title 42 often involves “placing
families on crowded planes and buses from the Rio Grande Valley, without first
testing the individuals and isolating those who test positive, and transporting them
to other locations in Texas, or places as far away as Arizona and San Diego, before
expelling them or releasing them into the United States.” Add.54 (cleaned up);
Supp.Add.67–68.
The district court further noted that “under the Title 42 regime, individuals
seeking an asylum hearing have attempted to cross the border multiple times,”
Add.55 (cleaned up), because most expulsions result in migrant families being sent
back to Mexico, where many then try to cross again to escape danger.
Supp.Add.123, 125. That dynamic multiplies transmission opportunities far more
11 Asylum-seeking families are subject to Title 42 even where the family is
vaccinated or tests negative. Contra CNBC, U.S. to ease travel restrictions for
foreign visitors who are vaccinated against Covid (Sep. 20, 2021),
https://tinyurl.com/42kxn55x.
USCA Case #21-5200 Document #1915446 Filed: 09/23/2021 Page 22 of 165
21
than simply admitting each family once for asylum screenings, while following
mitigation protocols. Supp.Add.79.
Defendants further claim that “the injunction risks straining [DHS’s]
already-limited capacity,” relying on statistics concerning encounters at the border.
Mot.19. The district court rightly found that those statistics were inflated:
“[T]hough Defendants contend that there has been a ‘historic’ level of enforcement
encounters at the border, the statistics Defendants cite ‘overstate the number of
unique individuals arriving at the border.’” Add.55. “[A]fter the implementation
of the Title 42 Process, the recidivism rate of individuals crossing the border
increased from less than 7% to 40%.” Id. As explained, Title 42 has led to
desperate people, who receive no asylum hearing, attempting multiple crossings,
with each crossing counted as a new “encounter.” Supp.Add.125. Correcting for
this inflation, the first nine months of the current fiscal year are, in fact,
comparable to FY2019—the most recent year in which travel and migration were
unaffected by pandemic conditions. Supp.Add.127.
Defendants additionally argue that DHS’s “already-limited capacity has
been greatly reduced due to COVID-19 protocols.” Mot.20. But Defendants do
not explain why the agency’s $81 billion budget ($18 billion of which is just for
USCA Case #21-5200 Document #1915446 Filed: 09/23/2021 Page 23 of 165
22
CBP)12 cannot be used to build capacity to process the remaining migrant families,
as the CDC itself suggested. Add.93 (“CDC encourages DHS to develop such
programs as quickly as practicable.”). For example, Defendants claim that migrant
families “may spend hours or days” in CBP’s indoor facilities, which have “very
limited” “testing for noncitizens.” Mot.5,19–20. “But here, again, only the
government’s own choice[s] appear[] to constrain its path forward.” Lockheed
Martin Corp. v. United States, 833 F.3d 225, 239 (D.C. Cir. 2016). The CDC
Order itself acknowledges that rapid testing is useful, available, and “can be
implemented,” but Defendants fail to explain why CBP has not yet expanded
testing access. Add.80,87. Similarly, Defendants have stated that processing for
families for entry “is generally conducted indoors” where social distancing is less
feasible. Mot.20–21. Yet Defendants do not claim that processing cannot be
performed outdoors. E.g., Supp.Add.30, 77–78, 103, 114.13
Finally, local providers testify that they have capacity to safely receive, test,
quarantine, and vaccinate more families if Title 42 were lifted—especially if
Defendants provided more resources. See Supp.Add.98 (estimating that “as of July
12 Department of Homeland Security, FY 2021 Budget in Brief,
https://tinyurl.com/28byu8tx.
13 The district court rightly rejected Defendants’ unfounded assertion (Mot.19) that
the injunction would further increase migration. Add.54–55 (citing expert
declarations).
USCA Case #21-5200 Document #1915446 Filed: 09/23/2021 Page 24 of 165
23
2021, less than 10 percent of [El Paso’s] capacity was currently in use”), 119
(stating existing programs “could also be scaled up” with more support), 122
(recommending that Defendants “channel[] money and resources to local agencies”
that have “developed these systems without the meaningful assistance of the
federal government”). Because local providers have excess capacity to transport
and receive families from CBP, e.g., Supp.Add.94, 98–99, 118–19, processing a
small percentage of additional families is unlikely to cause overcrowding at border
facilities, and any strain at CBP facilities is a result of DHS’s refusal to expand
capacity as the CDC has recommended, see Add.93.
As the district court held, Defendants’ resource-allocation decisions cannot
justify ongoing violations of federal law. Add.56–57. That is particularly so given
that Defendants have had eight months since this case was filed, and six months
while the parties negotiated, to increase DHS’s processing capacity and implement
public health safeguards. Cf. Realtors, 2021 WL 3783142, at *4 (observing “the
Government has had three additional months . . . to help ease the transition away
from” CDC eviction moratorium). Defendants have not carried their burden to
justify the extraordinary remedy of a stay.
CONCLUSION
Defendants’ motion should be denied.
USCA Case #21-5200 Document #1915446 Filed: 09/23/2021 Page 25 of 165
24
Dated: September 23, 2021
Stephen B. Kang
Cody Wofsy
Morgan Russell
My Khanh Ngo
American Civil Liberties
Union Foundation, Immigrants’
Rights Project
39 Drumm Street
San Francisco, CA 94111
(415) 343-0770
Andre Segura
Kathryn Huddleston
Brantley Shaw Drake
American Civil Liberties
Union Foundation of Texas, Inc.
5225 Katy Freeway, Suite 350
Houston, Texas 77007
(713) 942-8146
Karla M. Vargas
Texas Civil Rights Project
1017 W. Hackberry Ave.
Alamo, Texas 78516
(956) 787-8171
Jamie Crook
Blaine Bookey
Karen Musalo
Center for Gender & Refugee Studies
200 McAllister Street
San Francisco, CA 94102
(415) 565-4877
Respectfully submitted,
/s/ Lee Gelernt
Lee Gelernt
Omar Jadwat
Daniel A. Galindo
Ming Cheung
David Chen
American Civil Liberties Union
Foundation, Immigrants’ Rights Project
125 Broad Street, 18th Floor
New York, NY 10004
(212) 549-2660
lgelernt@aclu.org
Robert Silverman
Irit Tamir
Oxfam America
Suite 500
Boston, MA 02115
(617) 482-1211
Scott Michelman
Arthur B. Spitzer
American Civil Liberties Union
Foundation of the District of Columbia
915 15th Street, NW, 2nd floor
Washington, D.C. 20005
(202) 457-0800
Tamara F. Goodlette
Refugee and Immigrant Center for
Legal Education and Legal Services
(RAICES)
802 Kentucky Avenue
San Antonio, TX 78201
(210) 960-3206
Counsel for Plaintiffs-Appellees
USCA Case #21-5200 Document #1915446 Filed: 09/23/2021 Page 26 of 165
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
Pursuant to D.C. Circuit Rule 28(a)(1), counsel for Plaintiffs-Appellees
certify as follows:
A. Parties and Amici
All parties, intervenors and amici appearing in this court are listed in
Appellants’ Motion.
B. Rulings under Review
Reference to the ruling under review appears in Appellants’ Motion.
C. Related Cases
This case has not previously been before this or any other court. P.J.E.S. v.
Mayorkas, D.C. Cir. No. 20-5357, does not involve the same parties as this case,
but involves a challenge to the U.S. Centers for Disease Control and Prevention’s
Order under 42 U.S.C. § 265 by a provisionally-certified class consisting of all
unaccompanied noncitizen children who (1) are or will be detained in U.S.
government custody in the United States, and (2) are or will be subjected to the
CDC Order.
/s/Lee Gelernt
Lee Gelernt
USCA Case #21-5200 Document #1915446 Filed: 09/23/2021 Page 27 of 165
CERTIFICATE OF COMPLIANCE
This motion response complies with the type-volume limitation of Federal
Rule of Appellate Procedure 27(d)(1)(E) and (2)(A) because:
1. It contains 5,123 words.
2. It complies with the typeface and type-style requirements of Federal Rules
of Appellate Procedure 32(a)(5) and 32(a)(6) because it has been prepared in a
proportionally spaced typeface using Microsoft Word Professional Plus 2019 in 14-
point Times New Roman font.
/s/Lee Gelernt
Lee Gelernt
CERTIFICATE OF SERVICE
I hereby certify that on September 23, 2021, I electronically filed the
foregoing with the Clerk for the United States Court of Appeals for the DC Circuit
by using the CM/ECF system. A true and correct copy of the foregoing has been
served via the Court’s CM/ECF system on all counsel of record.
/s/Lee Gelernt
Lee Gelernt
USCA Case #21-5200 Document #1915446 Filed: 09/23/2021 Page 28 of 165
Addendum
USCA Case #21-5200 Document #1915446 Filed: 09/23/2021 Page 29 of 165
Table of Contents
Declaration of Javier O. Hidalgo, Huisha-Huisha et al v. Mayorkas et al,
No. 1:21-cv-00100-EGS (D.D.C. Feb. 5, 2021), Dkt. 57-8.......................... Supp. Add. 1
Declaration of Allison Herre, Huisha-Huisha et al v. Mayorkas et al,
No. 1:21-cv-00100-EGS (D.D.C. Feb. 5, 2021), Dkt. 57-9.......................... Supp. Add. 3
Declaration of Lisa Frydman, Huisha-Huisha et al v. Mayorkas et al,
No. 1:21-cv-00100-EGS (D.D.C. Feb. 5, 2021), Dkt. 57-11 ....................... Supp. Add. 6
Declaration of Taylor Levy, Huisha-Huisha et al v. Mayorkas et al,
No. 1:21-cv-00100-EGS (D.D.C. Feb. 5, 2021), Dkt. 57-12 ..................... Supp. Add. 17
Supplemental Declaration of Taylor Levy, Huisha-Huisha et al v. Mayorkas et al,
No. 1:21-cv-00100-EGS (D.D.C. Aug. 11, 2021), Dkt. 118-3 ................... Supp. Add. 20
Declaration of Julia Neusner, Huisha-Huisha et al v. Mayorkas et al,
No. 1:21-cv-00100-EGS (D.D.C. Aug. 11, 2021), Dkt. 118-4 ................... Supp. Add. 33
Affidavit of Jennifer K. Harbury, Huisha-Huisha et al v. Mayorkas et al,
No. 1:21-cv-00100-EGS (D.D.C. Aug. 11, 2021), Dkt. 118-5 ................... Supp. Add. 42
Declaration of Erika Pinheiro, Huisha-Huisha et al v. Mayorkas et al,
No. 1:21-cv-00100-EGS (D.D.C. Aug. 11, 2021), Dkt. 118-6 ................... Supp. Add. 47
Declaration of Savitri Arvey, Huisha-Huisha et al v. Mayorkas et al,
No. 1:21-cv-00100-EGS (D.D.C. Aug. 11, 2021), Dkt. 118-7 .................. Supp. Add. 57
Supplemental Declaration of Former Centers for Disease Control and Prevention (CDC)
Officials, Huisha-Huisha et al v. Mayorkas et al,
No. 1:21-cv-00100-EGS (D.D.C. Aug. 11, 2021), Dkt. 118-8 ................... Supp. Add. 62
Declaration of 32 Medical and Public Health Experts, Huisha-Huisha et al v. Mayorkas et al,
No. 1:21-cv-00100-EGS (D.D.C. Aug. 11, 2021), Dkt. 118-9 ................... Supp. Add. 74
USCA Case #21-5200 Document #1915446 Filed: 09/23/2021 Page 30 of 165
Declaration of Linda Rivas, Huisha-Huisha et al v. Mayorkas et al,
No. 1:21-cv-00100-EGS (D.D.C. Aug. 11, 2021), Dkt. 118-11 ................. Supp. Add. 92
Declaration of Marisa Limón Garza, Huisha-Huisha et al v. Mayorkas et al,
No. 1:21-cv-00100-EGS (D.D.C. Aug. 11, 2021), Dkt. 118-12 ................. Supp. Add. 96
Declaration of Astrid Dominguez, Huisha-Huisha et al v. Mayorkas et al,
No. 1:21-cv-00100-EGS (D.D.C. Aug. 11, 2021), Dkt. 118-13 ............... Supp. Add. 102
Declaration of Chelsea Sachau, Huisha-Huisha et al v. Mayorkas et al,
No. 1:21-cv-00100-EGS (D.D.C. Aug. 11, 2021), Dkt. 118-14 ............... Supp. Add. 105
Declaration of Susana Villén Iglesias, Huisha-Huisha et al v. Mayorkas et al,
No. 1:21-cv-00100-EGS (D.D.C. Aug. 11, 2021), Dkt. 118-15 ............... Supp. Add. 110
Declaration of Teresa Cavendish, Huisha-Huisha et al v. Mayorkas et al,
No. 1:21-cv-00100-EGS (D.D.C. Aug. 11, 2021), Dkt. 118-16 ............... Supp. Add. 117
Declaration of Kate Clark, Esq., Huisha-Huisha et al v. Mayorkas et al,
No. 1:21-cv-00100-EGS (D.D.C. Aug. 11, 2021), Dkt. 118-17 ............... Supp. Add. 120
Declaration of Aaron Reichlin-Melnick, Huisha-Huisha et al v. Mayorkas et al,
No. 1:21-cv-00100-EGS (D.D.C. Aug. 11, 2021), Dkt. 118-18 ............... Supp. Add. 123
Declaration of Alan E. Valdez Juárez, Huisha-Huisha et al v. Mayorkas et al,
No. 1:21-cv-00100-EGS (D.D.C. Aug. 11, 2021), Dkt. 118-19 ............... Supp. Add. 131
Declaration of Edgar Ramírez López, Huisha-Huisha et al v. Mayorkas et al,
No. 1:21-cv-00100-EGS (D.D.C. Aug. 11, 2021), Dkt. 118-20 ................ Supp. Add 132
Declaration of Samuel Thomas Bishop, Huisha-Huisha et al v. Mayorkas et al,
No. 1:21-cv-00100-EGS (D.D.C. Aug. 11, 2021), Dkt. 118-21 ................ Supp. Add 133
Declaration of Luis Alberto Lizarraga Tolentino, Huisha-Huisha et al v. Mayorkas et al,
No. 1:21-cv-00100-EGS (D.D.C. Aug. 11, 2021), Dkt. 118-22 ............... Supp. Add. 134
USCA Case #21-5200 Document #1915446 Filed: 09/23/2021 Page 31 of 165
DECLARATION OF JAVIER O. HIDALGO
I, Javier O. Hidalgo, swearing under penalties of perjury, that the following is true and correct to
the best of my knowledge:
1.
My name is Javier O. Hidalgo and I am the Supervising Attorney of the Family Detention
Services Program at the Refugee and Immigrant Center for Education and Legal Services
(“RAICES”). I have been the Supervising Attorney since October 2018. I am licensed to
practice law in the states of New York and Texas.
2.
My colleague Andrea Meza previously provided a declaration that described RAICES’s
work providing free legal services at Karnes County Family Residential Center in Karnes
City, Texas (“Karnes family detention center” or “Karnes”) since its opening as a family
detention center in August 2014. See ECF No. 5-2.
3. RAICES has now represented dozens of families subjected to Title 42 expulsion while
detained at Karnes. The following information is based on information learned from
representing these families, as well as our communications with DHS officers.
4. The intake process for new families arriving at Karnes currently includes testing for
COVID-19 and a period or quarantine. Typically, for family units that include both
parents, the fathers are quarantined separately from the rest of the family. After a family
who has tested negative for COVID-19 finishes their quarantine period, they are allowed
to access some common spaces with other detained families.
5. Karnes currently has a total bed capacity of approximately 830 individuals.1 We believe
that it currently houses 78 individuals as of the date of this declaration, which is a
relatively small percentage of its total capacity.
6. ICE detains families at Karnes in both Title 42 and Title 8 proceedings, though we
believe that currently only Title 42 families are detained at Karnes. In our experience,
families in Title 42 proceedings are detained at Karnes for at least two weeks on average.
We have seen families in Title 42 proceedings detained at Karnes as long as forty seven
1 See https://www.ice.gov/factsheets/karnes-county-residential-center (last accessed February 3,
2021).
Case 1:21-cv-00100-EGS Document 57-8 Filed 02/05/21 Page 1 of 2
Supp. Add. 1
USCA Case #21-5200 Document #1915446 Filed: 09/23/2021 Page 32 of 165
(47) days. In comparison, families at the facility in Title 8 proceedings have most
recently been detained at Karnes an average of twenty-seven (27) days.
7. When we learn of a detained family subject to Title 42 expulsion, and that family has a
fear of return to their home country, we notify DHS that the family needs an assessment
for relief under the Convention Against Torture (as DHS’s guidance requires). Thus far,
we are not aware of any Title 42 families who have passed DHS’s screening for torture
claims.
8. The families in Title 8 proceedings receive a credible or reasonable fear interview as a
threshold screening for potential asylum protection. If a family receives a negative fear
determination, they can ask an immigration judge to review that finding. Upon review of
our data from July 2020 through the present, the majority of families in Title 8
proceedings for whom our team provided legal services received a positive fear finding
or had a negative fear finding vacated by an immigration judge. In even more cases, DHS
releases the family from Karnes before we learn of the results of their fear screening,
likely because family passed the screening. Generally, families in Title 8 proceedings are
at Karnes for an average of 27 days, after which they are served with Notices to Appear
for removal proceedings under section 240 of the INA if they receive a positive credible
fear finding. Families are then are released to a sponsor, usually a family member here in
the United States, or to a shelter.
9. In the Fall of 2020, due to our advocacy DHS decided to reprocess a number of families
detained at Karnes from Title 42 to Title 8. The majority of those families reprocessed
into Tile 8 proceedings received positive credible fear findings and were released to their
sponsors in the United States.
I declare under penalty of perjury, under the laws of the United States of America and Texas,
that the foregoing is true and correct.
Date: February 4, 2021
/s/ Javier O. Hidalgo
Javier O. Hidalgo
Case 1:21-cv-00100-EGS Document 57-8 Filed 02/05/21 Page 2 of 2
Supp. Add. 2
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1
DECLARATION OF ALLISON HERRE
I, Allison Herre, pursuant to 28 U.S.C. § 1746, declare as follows:
1. I am an attorney licensed to practice law in Ohio. Since July 2019, I have been the
Managing Attorney for Proyecto Dilley (formerly the CARA Pro Bono Project and
Dilley Pro Bono Project). Proyecto Dilley has provided pro bono legal services to
asylum-seeking immigrant parents and their children who are detained by U.S.
Immigration and Customs Enforcement (“ICE”) at the South Texas Family
Residential Center (“Dilley”) in Dilley, Texas since the facility opened at the end of
2014. Our project provides direct representation in immigration proceedings through
project staff as well as volunteers from all over the country.
2. I have been practicing law since 2012 during which time I have focused my practice
on immigration law at both private and non-profit organizations. Immediately prior
to joining Proyecto Dilley, I served as the director of Immigration Legal Services, for
Catholic Charities of Southwestern Ohio in Cincinnati, Ohio.
3. This declaration is based on my personal experience working with noncitizen children
and families detained at Dilley. I am also familiar with the facility after having
visited Dilley almost daily prior to the outbreak of the COVID-19 pandemic and by
regularly interacting with facility staff and ICE officers both before and during the
COVID-19 pandemic.
4. Proyecto Dilley’s volunteer-based model has allowed our project to represent the
overwhelming majority of families who have been detained at Dilley. In 2015 we
represented 10,804 families, in 2016, we represented 12,850 families; in 2017, we
represented 13,291 families, in 2018, we represented 16,734, and in 2019, we
represented 10,086 families.
5. Subsequent to the government’s implementation of the Title 42 expulsion process,
ICE’s use of Dilley to detain asylum-seeking families dropped dramatically. In fact,
since the start of the COVID-19 pandemic in March 2020, our office has only
represented fewer than 500 families.
6. In a report filed by ICE Juvenile Coordinator Deane D. Dougherty with the District
Court for the Central District of California on January 19, 2021, 194 beds of the 2,400
beds available at Dilley were occupied, an 8% total occupancy of the facility’s total
capacity. This capacity reflects what we have seen for many months in Dilley.
7. Our clients typically come to the United States fleeing great danger in their home
countries, including El Salvador, Guatemala, Honduras, Brazil, Ecuador, Haiti,
Mexico, Cuba, Venezuela, the Democratic Republic of the Congo, Romania, Angola,
Uzbekistan, and many others.
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Supp. Add. 3
USCA Case #21-5200 Document #1915446 Filed: 09/23/2021 Page 34 of 165
2
8. The families we represent seek safety in the United States after experiencing
unimaginable harm. For example, Ms. K is a young mother, who was kidnapped by
her child’s father and held hostage for two years during which time he beat her, raped
her daily, and locked her and her child in the house for days without any food. The
abuser held guns to her head and threatened to kill her many times. On one occasion,
he beat her so severely that she went into premature labor and her child was born with
weak lungs, which have made him susceptible to severe respiratory infections. When
Ms. K and her one-year-old child arrived at the border, Ms. K had a fractured collar
bone from the final beating she received before escaping her abuser. Her child
became very ill and required hospitalization while detained by border patrol.
9. Another client, Ms. C, is from an ethnic minority in her home country. As a member
of the minority ethnic group, Ms. C was beaten by her teachers in school, had rocks
thrown at her, was denied medical care, and was prohibited from entering any public
buildings, such as the police station and government benefits office. Ms. C’s son was
murdered by a man who is a member of the majority ethnic group because Ms. C’s
son tried to defend himself from the man’s son who punched Ms. C’s child. When
Ms. C tried to report her son’s murder, the police refused to permit her into the
building and called her “dirty” and other slurs for the ethnic minority. The man later
broke into Ms. C’s home with a group of men and raped Ms. C, beat her son, and
raped her daughter-in-law. The man has also beaten Ms. C’s son on numerous
occasions.
10. We recently represented the “L” Family that openly opposed their government’s anti-
capitalist policies by importing goods from the United States to sell in the family’s
store. As punishment for the family’s defiance, the government sent police to Mr. and
Ms. L’s store where they ransacked and looted the store on at least two occasions,
arrested Mr. and Ms. L, and tortured Mr. L while he was detained. The police
repeatedly beat Mr. L in the groin so many times that he required hospitalization and
surgery after police finally released him.
11. As of November 2020, it is my understanding that all of the families detained at
Dilley are being processed under Title 8, rather than being subjected to immediate
expulsion under Title 42. Prior to November 2020, the overwhelming majority of
families that we represented and worked with were also placed in proceedings under
Title 8.
12. Dilley has instituted policies to house, quarantine, isolate, process, and release
immigrant families from the facility. Each family at the facility is put in the facility
and quarantined for about fourteen days. All family members are tested for COVID-
19 and either remain in quarantine, or if they test positive, are put in medical isolation
for at least fourteen days after the positive test. If the family includes both a father
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Supp. Add. 4
USCA Case #21-5200 Document #1915446 Filed: 09/23/2021 Page 35 of 165
3
and mother, the fathers are held in a different wing of the facility apart from the
mothers with their children.
13. Families who are detained in Dilley are housed in rather large solid-sided trailers,
where they have access to beds, sinks, telephones, showers, bathrooms, and a sitting
area. While most trailers in Dilley have capacity to hold up to six families at a time,
until recently, each family was put in a trailer alone. Recently, DHS has sometimes
put two or three families (mothers and children) together in a trailer, and sometimes
put multiple fathers in a trailer together.
14. Many of our clients have recently reported that they were asked by facility staff if
they would like to receive a COVID-19 vaccine. Clients who declined to receive a
vaccine were provided with contact information for a health center close to their final
destination and informed they could access the vaccine upon release from detention.
15. Typically, families who come to Dilley in Title 8 proceedings participate in
interviews with the U.S. Citizenship and Immigration Services. During the interview,
an asylum officer quickly determines whether the family has bona fide claim for
protection from persecution or torture. If families receive a positive determination
subsequent to their interview, they are processed into removal proceedings before an
immigration judge and are eligible for release. They are then released, typically to
the care of a sponsor in the United States who assumes responsibility for their care
and housing.
16. Over the last five years, with the exception of a period of time between July 2019 and
March 2020, more than 99% of the families represented by Proyecto Dilley received
positive decision in their case and were released from detention.
17. Families in Title 8 proceedings can be screened, processed, and released from Dilley
within 20 days, which is more than enough time for each family to complete 14 days
of quarantine for COVID-19. In my experience, the vast majority of immigrant
families we serve are well-suited for immediate release, because they have genuine
claims for relief from persecution, pose no danger to society, and are not flight risks.
I declare under penalty of perjury under the laws of the United States of America and Texas that
the foregoing is true and correct.
Executed on: February 5, 2021, in San Antonio, Texas, United States.
Signature:
Allison Herre
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Supp. Add. 5
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1
DECLARATION OF LISA FRYDMAN
I, Lisa Frydman, pursuant to 28 U.S.C. § 1746, declare as follows:
Information about KIND and the Declarant
1.
I am Vice President of International Programs at Kids in Need of Defense
(“KIND”), a nonprofit advocacy and legal services organization based in the United States. I am
an attorney and have been, since March 2020, Vice President of International Programs at KIND.
From 2017-2020 I was Vice President for Regional Policy and Initiatives (“Regional Team”) at
KIND. From 2015-2017 I served as KIND’s Director for Regional Policy and Initiatives. In my
work at KIND, I supervise KIND’s International Team with programming in Central America,
Mexico, and Europe, and regularly visit the northern countries of Central America and Mexico
(referred to collectively herein as “the Region”) to carry out the organization’s work described
here.
2.
KIND’s International Team offers direct programming with children and
adolescents in the northern countries of Central America. The International Team, through civil
society partner organizations, provides reintegration support services for children repatriating to
Guatemala and Honduras, as well as sexual and gender-based violence prevention programming
for children in certain high migration communities in Guatemala and Honduras. Through its
Reintegration Program and other Regional programming and visits, KIND’s International Team
communicated with approximately 550 Central American children in 2019. From 2015-2017, the
Regional Team provided support services to children in Honduras and El Salvador with pending
cases for refugee resettlement in the United States under an in-country refugee processing and
parole effort known as the Central American Minors (“CAM”) Program. In 2018 the Regional
Team, through civil society partners, conducted a project in the Region to empower adolescent
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refugees and migrants, as well as internally displaced adolescents from El Salvador, Guatemala,
and Honduras, to tell their stories related to immigration and internal displacement. In 2020,
KIND launched a broader set of programming in Mexico, with staff located along the U.S.-
Mexico border and in Mexico City.
3.
While KIND’s focus is on unaccompanied children, our work along the border
regularly intersects with families that include children. Our U.S. offices have served dozens of
children who reached the borders with their families; were placed in the Trump Administration’s
“Migrant Protection Protocols” (MPP) program that involved returning the families to northern
Mexico to await their immigration court hearings; and who subsequently entered the United
States as unaccompanied children, often because their parent or guardian was kidnapped or killed
while the family waited in Mexico. The experiences of families in the MPP program are relevant
here because many families expelled under Title 42—particularly those who are from
Guatemala, Honduras, and El Salvador—are sent to Mexico and forced to live there, instead of
being returned to their countries of origin.
4.
Children and families expelled to Guatemala, Honduras, and El Salvador under
Title 42 are returning to three of the most dangerous countries in the world. Guatemala,
Honduras, and El Salvador all rank among the top ten most dangerous countries by homicide
rates globally.1 Accordingly, these countries send significant numbers of asylum seekers with
bona fide claims to the United States each year. In 2018, the United States granted asylum to
7,350 individuals from these countries.2
1 According to the United Nations Office on Drugs and Crime (UNODC), in 2017, El Salvador
ranked first in the world by homicide rate, followed by Honduras (third) and Guatemala (ninth).
UNODC, Global Study on Homicide (2019).
2 Dep’t of Homeland Security, Office of Immigration Statistics, Annual Flow Report, Refugees
and Asylees: 2018 (Oct. 2019), at 8, available at
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5.
Violence, in combination with impunity and a failure of protection, causes
children and families to flee their homes in the northern countries of Central America and seek
safety in the United States. Migrants from these countries seek to escape violence inflicted by
criminal gangs or other organized crime, for example by drug cartels; sexual and gender-based
violence, including violence and extreme discrimination based on sexual orientation and/or
gender identity; and domestic abuse. Women and girls, and lesbian, gay, bisexual, transgender,
and intersex (“LGBTI”) individuals, face very high levels of sexual and gender-based violence.
Children are also frequently trafficked from rural to urban areas and across borders or to border
areas, where they are often sexually exploited or subject to exploitative labor. Femicide, or the
gender-motivated killing of women and girls, is also pervasive in these countries.3
6.
Gangs now dominate much of the urban areas of the Northern Triangle countries,
and their control has increasingly spread to rural areas as well, where international drug cartels
also, increasingly, operate. The most recent U.S. State Department Travel Advisory for
Guatemala illustrates this point, issuing a level 3 travel advisory for the departments of
Guatemala, Escuintla, Chiquimula, Quetzaltenango, Izabal, and Petén.4 The departments of San
Marcos and Huehuetenango have also experienced significant growth of organized crime in
recent years. Where these criminal groups dominate, women and girls are in constant danger of
https://www.dhs.gov/sites/default/files/publications/immigration-
statistics/yearbook/2018/refugees_asylees_2018.pdf.
3 See UNODC, Global Study on Homicide (2019), supra note 4 (reporting that in 2017, El
Salvador and Honduras ranked first and third in the world for female homicide rates); Mimi
Yagoub, Why Does Latin America Have the World’s Highest Female Murder Rates, InSight
Crime (Feb. 11, 2016), available at https://www.insightcrime.org/news/analysis/why-does-latin-
america-have-the-world-s-highest-female-murder-rates/ (reporting Guatemala ranked third in the
world by female murder rate).
4 U.S. Dep’t of State, Guatemala Travel Advisory,
https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/guatemala-travel-
advisory.html (last visited Feb. 5, 2021).
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being targeted for sexual violence, as they use rape and the threat of rape as a tactic of control in
the areas where they operate. Women and girls are also frequently targeted for forced sexual
relationships with organized crime members, and those who resist these advances face violence
or even death. When family members seek to protect women and girls from forced relationships
they face violence repercussions.
7.
Gangs also forcibly recruit boys and girls and, once invited to join, those who
resist (or are related to those who resist) face threats, torture, and ultimately death. These same
consequences also face individuals who fail to comply with violent extortion demands from
these groups, which have become very common in recent years. When victims attempt to escape
by relocating within their countries, gangs often track them down and ruthlessly punish them.
8.
Gang-based violence is pervasive in Guatemala, Honduras, or El Salvador. Over
90% of homicide cases in the northern countries of Central America end in impunity, and in
cases involving sexual and gender-based violence the impunity rate is even higher—at 95%. Law
enforcement officers sometimes target LGBTI individuals precisely when they come in to report
violence. Violence against women and children has increased during the pandemic, at the same
time that severe restrictions on movement and reduced staff at government agencies in
Guatemala, El Salvador, and Honduras, have made reporting it even more difficult.
9.
COVID-19 has exacerbated gender-based violence, gang violence, and other
longstanding concerns in Northern Central America, making the situation even more dire for
expelled families. The increase in violence against women and children has been evident in the
spike in calls to emergency hotlines during the pandemic. The Organization of Salvadoran
Women for Peace (ORMUSA) reported a 70 percent increase in complaints of violence against
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women in El Salvador between mid-March and late May of 2020.5 In Honduras, since the
pandemic started, every hour a woman experiences some form of GBV6, and the number of
reported cases of domestic and intra-family violence increased by 4.1 percent per week during
the first months of lockdown (March through May), reaching 10,000 reports made to the
National Emergency System in April alone.7
10.
In El Salvador, Honduras, and Guatemala, street gangs have used COVID-related
confinement to strengthen their control over communities.8 This includes “stepping up of
extortion, and sexual and GBV, and using forced disappearances, murders, and death threats
against those who do not comply”9 with curfews and other restrictions. In Honduras, for
example, gangs have used such tactics against citizens who did not comply with stay-at-home
orders.10 In El Salvador, gangs, like the MS-13, enforced the implementation of COVID-19
lockdown restrictions in several cities, including Santa Ana and San Salvador, through threats
and violence.11 Gangs killed 74 people during the first week of lockdown, far surpassing the
previous average of approximately three deaths per day due to gang violence.12
5 https://ormusa.org/organizaciones-lanzan-campana-de-sensibilizacion-de-la-violencia-contra-
las-mujeres-en-el-marco-de-la-emergencia-por-covid-19/ and
https://www.elsalvador.com/eldiariodehoy/violencia-domestica-coronavirus-
cuarentena/702488/2020/
6 https://honduras.unfpa.org/es/news/es-prioridad-asegurar-la-continuidad-de-los-servicios-de-
atenci%C3%B3n-victimas-de-violencia-durante
7 https://www.rescue.org/press-release/irc-data-shows-increase-reports-gender-based-violence-
across-latin-america and https://presencia.unah.edu.hn/noticias/observatorio-de-la-violencia-
reporta-45-muertes-violentas-de-mujeres-en-el-periodo-de-confinamiento/
8 UNHCR staff. 2020. “Central America’s displacement crisis aggravated by COVID-19.”
UNHCR
9 Ibd.
10 UN News. 2020. “Coronavirus Lockdowns in Central America, Exploited by Criminal Gangs |
COVID-19 | UN News.” United Nations.
11 Linthicum, Kate. O’Toole, M. Renderos, A. 2020.“In El Salvador, gangs are enforcing the
coronavirus lockdown with baseball bats.” Los Angeles Times.
12 Edgardo Ayala.2020. “Pandillas, virus más letal que el COVID-19 en El Salvador.” La
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11.
Expelled families are returning to grave food insecurity, a longstanding problem
in Guatemala, El Salvador, and Honduras, where over 35 percent of the population experiences
extreme, chronic undernourishment, but made much worse by the economic impacts of the
pandemic.13 Increased economic and social insecurity combined with heightened control exerted
by gangs during the pandemic, has left children and their families more vulnerable to violence,
displacement and forced recruitment by gangs. This has had an even greater impact on children
and families who had already being displaced within their own country in previous years due to
escalating violence and insecurity.14
12.
Closely related to impunity are the well-documented problems of corruption
and repression in all three of these countries. In one notable example, the former Guatemalan
president, Jimmy Morales, recently expelled the International Commission against Impunity in
Guatemala (“CICIG”), an entity created by agreement with the United Nations to prosecute
corruption. In its final report, CICIG described the Guatemalan government as a “mafia
coalition,” noting that corruption in that country could not be solved without “a profound
restricting of the state.”15 In October 2019, the brother of Honduran president Juan Orlando
Hernández was convicted on charges of drug trafficking, in a trial in which multiple witnesses
testified that President Hernández himself was aware of the activity, but accepted bribes and
Jornada. And Martinez, C. Martinez, O. Lemus, E. 2020 “Pandillas amenazan a quien incumpla
la cuarentena.” El Faro
13 Food and Agriculture Organization. 2020. “SDG Indicator 2.1.1 – Prevalence of
Undernourishment.” United Nations.
14 https://www.unhcr.org/news/briefing/2020/5/5ebe47394/central-americas-displacement-crisis-
aggravated-covid-19.html
15 Guatemala in grip of ‘mafia coalition’, says UN body in scathing corruption report, The
Guardian (Aug. 8, 2019), available at
https://www.theguardian.com/world/2019/aug/28/guatemala-corruption-mafia-coalition-jimmy-
morales.
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political support in exchange for turning a blind eye.16 In January 2020 President Hernández shut
down the mandate for the Mission to Support the Fight Against Corruption and Impunity in
Honduras (MACCIH), the anti-graft body backed by the Organization for American States.
13.
I am aware of numerous cases involving domestic violence or sexual violence
perpetrated by a male involved in organized crime in which the perpetrator was able to “buy off”
law enforcement, as well as examples of police officers and judges being bought off. I have
spoken with numerous women, including some adolescent girls, who fled abusive domestic
partners in the northern countries of Central America whose partners had either money or family
connections that protected them from prosecution.
14.
In addition to these forms of violence, children and families expelled to
Guatemala, El Salvador, and Honduras face discrimination from those fearful that they will
introduce COVID-19 to the community. Expelled migrants have faced threats of lynching or
burning in some cases.17 Asylum-seekers expelled to the country of origin have also continued to
face threats from their persecutors. KIND referred a number of expelled children and their
families to protective housing arrangements in order to provide some limited, short-term safety,
but asylum-seekers returned to dangerous conditions lack long-term protection. Migrants, like
the 19 shot and charred dead Guatemalans recently found in a truck in Tamaulipas, are often the
victims, with perpetrators ranging from police or other security forces to drug cartels and other
organized criminal groups.18 These cases include a Guatemalan family who had fled persecution
16 Honduran President’s Brother is Found Guilty of Drug Trafficking, N.Y. Times (Oct. 18,
2019), available at https://www.nytimes.com/2019/10/18/world/americas/honduras-president-
brother-drug-trafficking.html.
17 U.S. returns migrant children despite risks worsened by Coronairus: UNICEF, Reuters (May
21, 2020), available at: https://www.reuters.com/article/us-health-coronavirus-usa-mexico/us-
returns-migrant-children-despite-risks-worsened-by-coronavirus-unicef-idUSKBN22X1RP.
18 https://www.washingtonpost.com/world/the_americas/mexico-tamaulipas-police-migrant-
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in their country of origin, after they had unsuccessfully attempted to relocate in Guatemala and
their persecutors found them. The family—which included a parent and two children—came to
the United States and were placed in MPP and forced to live in Mexico while awaiting their
removal proceedings. Conditions in Mexico became so unsafe that the children crossed the
border without their mother to seek safety in the United States, but were then expelled to
Guatemala. The parent, who remained in Mexico when the children went on to the United
States, returned to Guatemala after learning of the children’s expulsion, although the parent felt
terrified to return.
15.
Mexican children and families risk return to the same dangers they fled, typically
violence at the hands of drug cartels. Central American families expelled to Mexico face the
additional risk of being targeted because of their status as migrants.19 In one family’s case, the
family was returning to one of the encampments along the U.S.-Mexico border where migrants
are living while awaiting removal proceedings in the United States. The mother was targeted by
kidnappers and escaped, but her child was injured in the process. Another family faced threats
by criminal gangs who were attempting to steal children in an encampment in Matamoros,
Mexico.20 We are also aware of three families whose children suffered sexual abuse while living
killing/2021/02/03/32c22274-65c7-11eb-8468-21bc48f07fe5_story.html.
19 According to Human Rights First, as of May 13, 2020 there were over 1,114 reported cases of
“murder, rape, torture, kidnapping, and other violence assaults against asylum seekers and
migrants” at the U.S. Mexico border, available at:
https://www.humanrightsfirst.org/campaign/remain-mexico; More People Kidnapped, Abused on
Migration Route in Southern Mexico, Doctors Without Borders (Oct. 30, 2019), available at
https://www.msf.org/increase-kidnappings-and-violence-against-migrants-southern-border-
mexico.
20 Brief of Young Center for Immigratn Children’s Rights, Kids in Need of Defense, et al., Wolf
v. Innovation Law Lab, No. 19-1212 (Jan. 22, 2021) at 19-20, 31-21,
http://www.supremecourt.gov/DocketPDF/19/19-1212/167044/20210122180800456_19-
1212%20Amici%20Curiae.pdf.
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in a migrant shelter in Ciudad Juarez, Mexico.
16.
Mexico ranks in the top 20 countries with the highest global homicide rates, and
border towns in Mexico—where many children and families are expelled to—have some of the
highest rates of homicide, kidnapping, and femicide in the country. In 2016 the average homicide
rate per capita in 35 Mexican border municipalities was over four times the rate in the
corresponding U.S. border counties.21
17.
In addition, the U.S. government currently expels many families from Guatemala,
Honduras, and El Salvador to Mexico. Such families often face grave threats at the U.S.-Mexico
border. In the Mexican border state of Tamaulipas, children face high rates of kidnappings and
murder. From 2006 to 2014 at least 2,000 children were murdered or mutilated, and in the first
five months of 2020, 265 children were reported missing.22 Children in Mexico’s border regions
are particularly vulnerable to human trafficking, sexual exploitation, and forced labor, in many
cases at the hands of organized criminal groups. Over the past five years, rates of femicide, or
gender-motivated killing of women and girls have increased 137 percent and in many cases these
murders are accompanied by torture, mutilation, and sexual violence. The border states of
Sonora, Nuevo León, and Chihuahua had the highest femicide rates in the country, almost twice
the rate of Mexico City. Femicide rates in the border city of Ciudad Juarez have been on the rise
since 2019, and historical data show that young women are disproportionately targeted, with half
21 Here’s What Violence Along the U.S.-Mexico Border Really Looks Like, Igarape Institute (Jul
3, 2017), available at: https://igarape.org.br/en/heres-what-violence-along-the-u-s-mexico-
border-really-looks-like/.
22 Relatoría sobre los Derechos de la Niñez culmina su visita a México (Rapporteur on children’s
rights completes visit to Mexico), Organization of American States (Oct. 20, 2014), available at:
http://www.oas.org/es/cidh/prensa/comunicados/2014/125.asp;
https://www.hrw.org/news/2020/06/02/dhs-oig-formal-complaint-regarding-remain-mexico.
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of victims under the age of 19.23
18.
Ninety-nine percent of crimes committed against migrants in Mexico end in
impunity.24 The vast majority of gender-based crimes in Mexico also go unpunished due to
widespread underreporting, corruption, and the failure of government institutions to effectively
investigate and prosecute crimes. As many as 99 percent of femicides result in impunity.25
Migrant women and children who are victims of gender-based violence in Mexico face even
greater barriers to accessing protection and justice, including fear of discrimination or
deportation if they report violence.
19.
KIND has also worked with families subjected to Title 42 expulsion, including a
family that repeatedly expressed a strong fear of return to their Central American country of
origin while caring for a child recovering from a serious medical condition. After being
apprehended by CBP in July 2020, the family was held for several days in hotels near the border,
under guard and allowed only brief, non-private telephone calls with their U.S. citizen family
member; the child’s medication was taken and not replaced, and a promised visit from a doctor
23 Femicide in Juárez is Not a Myth, Texas Observer (Sept. 28, 2015), available at:
https://www.texasobserver.org/femicide-in-juarez-is-not-a-myth/. In July 2020 there were 161
homicides in Juarez, which was only the third-highest month this year; 15 of the victims were
female, including a two-year-old child. Luz del Carmen Sosa, Cobra julio 161 víctimas de
homicidio (In July, 161 victims of homicide), El Diario (Aug. 1, 2020), at
https://diario.mx/juarez/cobra-julio-161-victimas-de-homicidio-20200801-1691599.html.
24 Access to Justice for Migrants in Mexico: a Right that Exists Only on the Books, Washington
Office on Latin America, Fundar, Fundacion Para la Justicia, Hermandos del Camino, Red
Migrantes Sonora, La 72, Casa del Migrante Saltillo (Jul. 2017), available at:
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwi2ot-
onNPuAhU9CjQIHQwBD-
MQFjABegQIBBAC&url=https%3A%2F%2Fwww.wola.org%2Fwp-
content%2Fuploads%2F2017%2F07%2FAccess-to-Justice-for-Migrants_July-
2017.pdf&usg=AOvVaw1xJPmgWElEm8dNetnhVxxY.
25 Despite the Coronavirus Mexican Women are Fighting Femicide, Foreign Policy (May 20,
2020), available at: https://foreignpolicy.com/2020/05/20/coronavirus-mexico-women-fighting-
femicide/.
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never materialized. They were then expelled on a flight to their country of origin.
I declare under penalty of perjury under the laws of the United States of America and
California that the foregoing is true and correct. Executed on: February 5, 2021, in Berkeley,
California, United States.
Signature:
/s/ Lisa Frydman
Lisa Frydman
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1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NANCY GIMENA HUISHA-HUISHA, et al.
Plaintiffs,
v.
ALEJANDRO MAYORKAS, Secretary of
Homeland Security, in his official capacity, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
No. 20-cv-00100-EGS
DECLARATION OF TAYLOR LEVY IN SUPPORT OF PLAINTIFF’S MOTION FOR
CLASSWIDE PRELIMINARY INJUNCTION
I, Taylor Levy, hereby declare:
1. I am an attorney admitted to practice in Texas. I became licensed in 2019. I am in good
standing with the State Bar of Texas (State Bar No. 24113588). I specialize in
immigration law, and run a private law firm called Taylor Levy Law through which I
provide primarily pro bono legal services to individuals along the U.S.-Mexico border.
2. Since 2009, I have worked as an attorney and advocate in various capacities for
noncitizens at or near the border. Among other roles, I have worked as Legal Coordinator
for Annunciation House in El Paso, Texas, where I coordinated volunteers who represent
and advocate for immigrants in the El Paso area. Before I became licensed as an attorney,
I worked for five years as a Department of Justice Accredited Representative representing
individuals in immigration court in the El Paso, Texas area.
3. Beginning in March 2020 I began going to the Mexican side of the Paso del Norte Port of
Entry in Ciudad Juarez, Mexico to provide free legal advice to migrants presenting for
their (cancelled) Migrant Protection Protocols (“MPP”) hearings. From March 2020
through August 2020, I went to the Paso del Norte Port of Entry almost every weekday
from approximately 4 am to 10 am and provided free legal advice and free consultations.
From March 2020 through November 2020, I also frequently visited migrant shelters to
give free legal advice and consultations to families who had been expelled under Title 42.
In addition to my work in Juarez, I serve as a free mentor to immigration attorneys from
across the country. Since March 2020, I have consulted on numerous cases involving
asylum-seeking families expelled across the southern border.
4. Since the Title 42 Process went into effect in March, I have worked with dozens of
families subjected to expulsion under Title 42. Many of these families include very
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young children, some of whom are infants or toddlers. Most of the families I have
worked with come from El Salvador, Guatemala, Honduras, and Venezuela.
5. Between March and August 2020, I personally observed hundreds of Title 42 expulsions,
which included a number of families with parents and their children. The children who I
observed being expelled ranged from infants held in their mothers’ arms who were too
young to walk, to four-year-old toddlers, to teenagers. Many of the children I saw being
expelled were in wet and muddy clothes. They told me that they were hungry and thirsty.
6. When I observed people who I thought had been expelled, I would approach them and try
to explain that I was an immigration lawyer and there to help if they needed help. They
were often too scared to speak with me, as they did not know who I was or if I was going
to hurt them or trick them. However, during this period I spoke with dozens of people
who were expelled, including many families with minor children, both at the bridge and
in migrant shelters.
7. The families I have worked with were frequently fleeing grave persecution and threats in
their countries of origin. I would ask families if they had asked US border agents for
asylum prior to their expulsions. Many said they had asked for asylum but that US
immigration agents had told them that asylum had been cancelled and that it was
impossible to ask for asylum. Many would break down crying, sobbing, shaking, saying
they had nowhere to go in Mexico, they did not know where they were, and that they
could not return to their home countries. They would often tell me that they had told
immigration agents details about the violence and persecution they were fleeing in their
home countries and were ignored. The most common refrain from people was, “what am
I supposed to do, where am I supposed to go.”
8. People were scared of being in Juarez because they did not know how to navigate the
area or where they could go to stay safe, and they were scared they would be kidnapped.
They were too scared and uninformed to know who was there to help them and who was
there to hurt them, so there was no way for them to learn about the (few) resources that
exist in Juarez for migrants, like migrant shelters. Some expelled migrants told me that
they attempted to turn themselves in to Mexican immigration officials, but the officials
told the migrants that they could not help because of the pandemic. Some even asked
Mexican officials to deport them back to their home countries because they felt safer
hiding there than trying to survive on the streets of Juarez, but that Mexican officials
declined because there were no deportations happening due to the pandemic.
9. On one occasion I spoke with a family from Central America. The family consisted of a
mom and her school-aged son who were originally too scared to talk to me. After they
had been at the bridge for several hours, observing me speak with other migrants, they
finally trusted me enough to talk to me. They told me that they had been expelled after
being apprehended at a Border Patrol checkpoint, trying to leave El Paso. The mother
was despondent and told me she told the agents she wanted to seek asylum. She said they
told her that no asylum was available. She did not know what she was going to do and
did not know where to go in Juarez and was scared they would be harmed in Juarez. This
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family was emblematic of many other families I observed and spoke with, who similarly
were fleeing persecution and were told by U.S. officials that asylum was no longer
available.
10. On another occasion I saw a mom with a little boy who was 4 or 5 years old. I saw them
at 4 am, right when I got to the bridge. I knew she was a migrant because of the hour and
because she had a small child with her. She was an asylum seeker from Honduras who
was too traumatized to tell me why she was fleeing, she just kept saying “asylum,
asylum,” when I asked. The mom was very upset because when she was picked up,
Border Patrol had taken her passport and her son’s birth certificate. When she was
expelled, Border Patrol had not returned these documents to her. Like other people who
were expelled under Title 42, she had been taken to the middle of the bridge by Border
Patrol and told to walk south. She told me that once she understood she was being
expelled, she asked the officers repeatedly to return her documents to her. Now that she
was in Juarez without these documents, she was terrified that someone would take her
child from her since, without her son’s birth certificate, she could not prove that her son
was her son. I immediately took her back to the middle of the bridge and asked the
officers for her documents. The officers I spoke with initially denied that Border Patrol
agents had taken her documents, saying Border Patrol did not do that. I then called
Border Patrol Station 1 and begged them to listen to me. After several phone calls and
being bounced around to different officers, I was finally told that Border Patrol agents did
have her documents and would return them. Approximately one hour later, a Border
Patrol officer came to the middle of the bridge where we were waiting and returned her
passport and her son’s birth certificate to her. I feel confident that she would not have
been able to recover her documents without my advocacy.
11. I have also consulted on numerous cases involving kidnapped Central American asylum-
seeking families. In many of these cases, the families were kidnapped immediately upon
being expelled from the United States. Because the families are not Mexican, and lack
connections and resources in that country, they are frequently preyed upon and
victimized by gang members, the cartels, or others seeking to take advantage of their
vulnerable circumstances. The families are easily-recognizable in Mexico because of the
locations where they are returned, their clothing, and their accents.
I declare under the penalty of perjury under the laws of the United States that the foregoing is
true and correct. Executed in Hallandale Beach, Florida.
Dated: February 5, 2021
/s/ Taylor Levy
TAYLOR LEVY
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SUPPLEMENTAL DECLARATION OF TAYLOR LEVY
I, Taylor Levy, hereby declare, pursuant to 28 U.S.C. § 1746:
SUMMARY
1. Having worked with border communities for over ten years, including having represented
over 1,200 migrants impacted by the Title 42 policy, I am deeply familiar with the
humanitarian crisis fueled by the policy and the policy’s disconnect from COVID-19
concerns.
2. CBP expulsions of migrants occur in predictable locations at predictable times in areas
where kidnappers and organized crime are rampant. As a result, many migrants are
kidnapped immediately upon CBP releasing them into Mexico from a U.S. port of entry.
3. The risks to migrants are particularly acute when CBP engages in so-called lateral
expulsions, in which migrants are apprehended at one part of the border (often the Rio
Grande Valley in Texas), detained for as long as seven days, transported by plane or bus
to another part of the U.S. border (as far away as San Diego, California), and then
expelled into a completely different part of Mexico. Such expulsions make asylum-
seekers even bigger targets for organized crime because the migrants (1) are easily
identifiable outside the ports of entry, (2) are unfamiliar with their new surroundings, (3)
have no shelter or other resources in the area, and (4) they likely have no more money to
pay extortion (“protection fees”) to another local gang or cartel (after already being
extorted at their previous location).
4. My clients in Mexico suffer abuse from every possible source. For instance, one El
Salvadoran woman had been expelled by the United States, then kidnapped, raped, and
dumped in the desert, before the Mexican police told her that “migrants like to be raped”
when she tried to report it; she then discovered that she was pregnant from the rape and
suffered a forced abortion while seeking prenatal care at a public hospital. Overall,
approximately 40% of the clients I worked with in Nuevo Laredo, Mexico report either
an actual or attempted kidnapping (or both).
5. The horrific conditions that migrants endure in Mexico, combined with the federal
government’s decision to exempt children but not their parents from Title 42, have also
forced parents to make gut-wrenching decisions to send their children across the border
alone, unsure whether they will ever reunite.
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6. Many of my clients were also actively harmed by CBP during their expulsions. Mothers
who recently gave birth were expelled—while still bleeding profusely—with their U.S.-
citizen newborns. Others had their critical medications seized and disposed of.
7. Through my work, I have become familiar with border processing, as well as shelter
operations on both sides of the border. In my experience, Customs and Border Protection
(CBP) has demonstrated that it can process families quickly, and shelter operators have
taken extensive measures to prevent COVID-19 transmission among migrants, including
testing and quarantine.
8. I have helped facilitate COVID-19 testing for 858 clients, and only 22 people (2.56%)
tested positive.
QUALIFICATIONS
9. I am an attorney admitted to practice in Texas. I became licensed in 2019. I am in good
standing with the State Bar of Texas (State Bar No. 24113588). I specialize in
immigration law, and run a private law firm called Taylor Levy Law through which I
provide primarily pro bono legal services to individuals along the U.S.-Mexico border.
10. Since 2009, I have worked as an attorney and advocate in various capacities for
noncitizens at or near the southern border. Among other roles, I have worked as Legal
Coordinator for Annunciation House in El Paso, Texas. Prior to my attorney licensure, I
worked for five years as an accredited representative for the U.S. Department of Justice
representing individuals in immigration court in the El Paso, Texas area.
11. Beginning in March 2020 I began going to the Mexican side of the Paso del Norte Port of
Entry in Ciudad Juarez, Mexico to provide free legal advice to migrants presenting for
their (canceled) Migrant Protection Protocols (“MPP”) hearings. From March 2020
through August 2020, I went to the Paso del Norte Port of Entry almost every weekday
from approximately 4 am to 10 am and provided free legal advice and free consultations.
From March 2020 through November 2020, I also frequently visited migrant shelters to
give free legal advice and consultations to families who had been expelled under Title 42.
In addition to my work in Juarez, I served as a free mentor to immigration attorneys from
across the country. Since March 2020, I have consulted on numerous cases involving
asylum-seeking families expelled across the southern border.
12. Since May 2021, I shifted my focus from my work in the Ciudad Juarez region to Nuevo
Laredo (in partnership with the nonprofit organization VECINA) due to the alarming
rates of expulsions under Title 42, which has subjected individuals seeking asylum to
dangerous conditions in Nuevo Laredo, Mexico. I also work with some clients subjected
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to Title 42 in Reynosa and Piedras Negras. I also communicate extensively with other
immigration attorneys and humanitarian aid organizations providing services across the
Mexican border.
13. I have also represented and helped many people seek exemptions from the CDC’s Title
42 policy and be successfully processed at various ports of entry since April 2021. I have
also helped arrange COVID-19 tests for hundreds of migrants prior to their entry into the
United States since June 2021.
Migrant Families Are Trapped in Horrific Conditions in Mexico As They Await the End of
Title 42.
14. Migrant families are extremely vulnerable in Mexico because, among other things, they
are routinely (1) targeted for kidnapping, rape, trafficking, and extortion; (2) denied
medical care even for serious illnesses; (3) displaced, homeless, and often forced to sleep
on the street or in a plaza; (4) discriminated, harassed, and attacked based on race,
gender, and sexual orientation; (5) assaulted by a combination of police and private
actors; and (6) prevented from accessing basic services and legal protection due to
language barriers.
15. Since May 2021, I have represented 398 families, and 22% of them had been kidnapped
in Mexico. Twenty-one percent managed to escape from an attempted kidnapping.
Overall, 41% experienced an actual or attempted kidnapping or both.
16. One of my female clients from El Salvador, who had been expelled three times under
Title 42, was kidnapped by two men who put a wet rag over her mouth, causing her to
lose consciousness. When she awoke, she was alone, mostly naked, dumped in the desert,
and had been raped. She walked until she found a woman who gave her pants and some
money for a bus ride. My client went to the municipal police to report the rape, and the
police officers told her that they were not going to accept her complaint because she was
a migrant and “migrants liked to be raped.” She later realized that she was pregnant as a
result of the rape and went to the public hospital for prenatal care. At the hospital, a
doctor, without informing my client or obtaining her consent, forcibly induced an
abortion. As a Christian, my client does not believe in abortion and wanted to keep her
baby, who was innocent, despite being the product of rape.
17. That client’s trauma was severe but not unique. I also represented a Black Honduran
mother and her 7-year-old son—they were kidnapped in Reynosa, and the mother was
severely beaten and raped in front of her son. When she sought help, Mexican police
officers refused to help her and instead taunted her, asking her how much she would
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charge to give them a turn. Since this trauma, the 7-year-old became extremely depressed
and has frequently told his mother that he wants to die.
18. Another client told me that she was “lucky,” because even though the kidnappers gang-
raped her repeatedly, they always did it in a separate room so that her 8-year-old daughter
and 6-year-old son did not have to watch.
19. Kidnappers target migrants in hopes of extracting ransom from family and friends in the
U.S. Migrants, particularly Black migrants and other racial minorities, are readily
identified based on their appearance and their proximity to the border.
20. Many of the families I work with have serious medical conditions and they are unable to
access appropriate medical care in Mexico. They report going to the public hospitals to
seek emergency treatment (as officially required under Mexican law) only to be denied
care because of their status as migrants. My clients’ untreated medical conditions have
included cerebral palsy, seizures resulting from brain injuries suffered during beatings,
brain tumor, vaginal infection, skin rashes, hernias, fainting, heart problems, diabetes,
high blood pressure, asthma, anxiety, depression, suicidality, diarrhea, serious weight-
loss, bed-wetting, gallstones, kidney stones, pediatric liver disease, anemia, ovarian cysts,
spina bifada, hyperthyroidism, blood disease, autism, epilepsy, and scoliosis.
21. I represented a Honduran family whose one-year-old baby was denied emergency
medical attention when he stopped breathing. The baby has Down’s Syndrome and a
heart murmur. The family sought help at a public Mexican hospital and was told
explicitly that they were denied care because they were foreigners. This family has been
expelled to Mexico twice after trying to seek asylum in the United States.
22. I also represented a young Venezuelan man with spina bifada who was in a wheelchair,
whose immobility made him particularly vulnerable to kidnapping. He was unable to
receive necessary check-ups for his condition, and he ended up with an infection that
moved to his kidneys as a result.
23. Another client had experienced vaginal bleeding for 3 months and was told by a doctor at
the public hospital that she had over 20 uterine fibroids and was in severe need of
surgery. However, the hospital refused to perform the operation because she was a
migrant.
24. One of my clients was an 8-year-old girl with an enlarged heart that results in her turning
purple and struggling to breathe. When the family sought out medical treatment for her,
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doctors at public hospitals refused to serve them on numerous occasions, saying that
Mexicans were more deserving of their help.
25. Families also frequently report a severe fear of leaving the shelters to seek out medical
treatment because they are worried about being kidnapped, especially those families who
have already survived one kidnapping and worry that their families will be unable to
gather another ransom if requested.
26. My clients frequently report being harmed by Mexican law enforcement. Many families
report being robbed, bribed, kidnapped, beaten, and sexually assaulted by Mexican
police. Other migrants report Mexican immigration officials demanding $500 bribes in
exchange for their release; some expelled migrants report being handed over directly to
kidnappers by Mexican immigration officials immediately upon expulsion.
27. I represented a Black Honduran asylum-seeker who was six-months-pregnant and
suffered a miscarriage due to extreme distress caused by frequent police raids at her
apartment.
Title 42 Has Exacerbated the Dangers that Migrant Families Face in Mexico.
28. In addition to prolonging the time that people spend under dangerous conditions, Title 42
elevates the risks that migrants face in Mexico and inflicts additional trauma on asylum-
seekers.
29. CBP expulsions of migrants occur in predictable locations at predictable times in areas
where kidnappers and organized crime are rampant. As a result, many migrants are
kidnapped immediately upon CBP releasing them into Mexico from a U.S. port of entry.
30. The risks to migrants are particularly acute when CBP engages in so-called lateral
expulsions, in which migrants are apprehended at one part of the border (often the Rio
Grande Valley in Texas), detained for as long as seven days, transported by plane or bus
to another part of the U.S. border (as far away as San Diego, California), and then
expelled into a completely different part of Mexico.
31. Such expulsions make asylum-seekers even bigger targets for organized crime because
the migrants (1) are easily identifiable outside the ports of entry, (2) are unfamiliar with
their new surroundings, (3) have no shelter or other resources in the area, and (4) they
likely have no more money to pay extortion (“protection fees”) to another local gang or
cartel (after already being extorted at their previous location).
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32. At multiple ports of entry in Texas (Laredo, El Paso, Eagle Pass, and Hidalgo), CBP has
routinely expelled my clients, including newborns, into the waiting arms of kidnappers
biding their time next to the port. Migrants become immediate targets as soon as they are
marched over the boundary line into Mexico. Several of my clients have reported
kidnappings and attempted kidnappings by armed men in trucks and vans waiting near
the spots where Title 42 expulsions occur.
33. During those incidents, children are sometimes ripped from the arms of their mothers and
fathers and pulled into the kidnappers’ vehicles. Oftentimes migrant families run from
these kidnappers trying to escape, resulting in family separation where some members
escape while others are not so lucky. In some cases, the family members who survived
the attempted kidnapping never again hear from their missing family members.
34. Others have reported being kidnapped by supposed taxi drivers who park near the ports
and either kidnap the migrants directly or who refuse to take them to their destination and
instead hand them over to kidnappers.
35. I represented a father and his six-year-old son, who were kidnapped and almost
kidnapped a second time, each time immediately after being expelled from a U.S. port of
entry. The first time, they were immediately kidnapped after CBP expelled them into
Reynosa; the father was trafficked for labor. After they were released, the family tried to
seek asylum again—this time, CBP transported the family and expelled them into Nuevo
Laredo, where they narrowly escaped another kidnapping attempt.
36. Another client family, consisting of a mother and her seven-year-old son from El
Salvador, were expelled into Mexico on several occasions trying to seek asylum in the
United States. On their final attempt, they were kidnapped immediately upon expulsion to
Nuevo Laredo and held for eight days while their family gathered the money to pay their
ransom. The mother reported that her son did not eat anything during the entire
kidnapping and was deeply traumatized.
37. I also represented a Honduran mother, father, and their children, ages eight and one. The
mother was kidnapped and held for a month before finally being released after her family
in the United States paid a ransom. Later, the father was approached by the cartel in
Nuevo Laredo who demanded that he work for them. He refused, and they beat him so
badly that they broke his hip and told him that he was going to have to start working for
him once he healed. The family was so terrified that they hid in the migrant shelter rather
than try to seek medical care; as a result, the father can no longer walk unassisted.
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38. Another client was immediately kidnapped after being expelled from El Paso and was
repeatedly sexually assaulted by her captors.
39. I also worked with a young mother of three who attempted to cross at Reynosa, Mexico
but the family was apprehended and expelled more than a thousand of miles away into
Tijuana, Mexico. On their second attempt, they were deported to Nuevo Laredo, where
the family was kidnapped for five days and threatened with dismemberment for a ransom
of $20,000. The family is now traumatized from the event.
40. In another case, a mother and her two sons—including one who has severe autism and is
nonverbal—were kidnapped for three weeks after being expelled into Mexico. The family
had fled their home country after the children’s father was murdered.
41. Another mother and her 8-year old son seeking asylum were expelled and then kidnapped
for several days until her son fell ill and they were released “so her son would die
elsewhere.”
42. I also worked with a family of four that included a nine-month-pregnant mother, a father,
and two children ages four and nine. The family originally sought asylum in the Reynosa
area, only to be expelled. During their second attempt to seek safety, the family was
accosted by cartel members. The young children made it across the river (thereby
becoming unintentional unaccompanied minors), but the mother and father were
kidnapped, separated, and brutalized. Eventually, the mother was released when she went
into labor, and her baby was born with severe complications.
43. Title 42 has also resulted in more dangerous crossings. Prior to Title 42, I had rarely
witnessed or learned of families attempting to climb over the border wall, but now, this
has become a more common occurrence for desperate families subject Title 42
expulsions. I worked with a family who attempted to jump over the border wall and the
two children fell off; one broke their leg and the other was seriously injured.
44. I have also represented clients who suffered direct harm at the hands of the Border Patrol
during the expulsion process. For instance, expelled families frequently report having
their medications seized by the Border Patrol. For example, I recently represented a
Honduran mother with a chronic heart condition whose medication was taken away by
Border Patrol upon apprehension and never returned; this resulted in her having
extremely high blood pressure and swelling in her feet. I also represented a mother and
her two-year-old son, whose asthma medicine was seized.
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45. Since March 2021, I have represented five Central American mothers who were expelled
into the streets of Piedras Negras, Mexico, within 48-72 hours after giving birth to a U.S.
citizen baby in Eagle Pass, Texas. All of the mothers reported being expelled with limited
baby formula, diapers, and clothing. The mothers—including one who had a cesarean
section—all told me that they were in significant pain from given birth and unable to
access medical care in Mexico. One mother told me that the Border Patrol took away all
her belongings prior to expulsion—including her cell phone, money, clothing, and
sanitary napkins—such that she had bled through her only pair of underwear and pants.
All five mothers were expelled prior to obtaining birth certificates for their infants. Once
in Mexico, they were unable to obtain appropriate medical attention for their babies
because of their undocumented status.
Title 42 Has Caused Innumerable Families to Become Separated From Their Children.
46. Given the dangerous conditions in Mexico, the continued application of Title 42 to
migrant families has forced parents to make heart-wrenching decisions to send their
children to the United States alone, not knowing when (or if) they would ever see each
other again.
47. I have witnessed the desperation that has forced parents to send their children
unaccompanied to the border, because the Biden administration will accept only
unaccompanied minors and not families under Title 42. Parents believe that is their only
option. I have heard parents say, “no me queda de otra” (“I have no other option”).
48. For example, I worked with an indigenous mother with limited Spanish fluency who tried
to seek asylum with her eight-year-old daughter. Immediately upon expulsion, the family
was pursued by masked men with guns. The mother told her daughter to run, and the
child was able to narrowly escape while the mother was abducted. The daughter ended up
in the custody of the Office of Refugee Resettlement (“ORR”)—deeply traumatized—
and thinking for over a month that her mother had been killed.
49. Another one of my clients was the mother of a nine-year-old boy fleeing forced gang
recruitment in Honduras. After an attempted kidnapping in Mexico, the child’s mother
sent him alone to the U.S, where he was languishing in ORR custody with no viable
sponsor and about to be placed in long-term foster care.
50. I also represented a family that crossed the border twice in April 2021 seeking asylum.
After being expelled both times, the family decided to send their son across alone. The
remaining adult family members narrowly escaped an attempted kidnapping in Ciudad
Juarez. They were also accosted and robbed by Mexican police officers. The father also
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had uncontrolled diabetes and was unable to access proper medical care in Mexico. An
attorney for the child, who was in ORR custody, contacted me for assistance applying for
a humanitarian exemption from Title 42 for the adult family members, because the
child—who had been identified as a victim of human trafficking—was suffering severe
psychological trauma worrying about his family’s safety.
51. It is my professional opinion that the unaccompanied minor increase at the border is
directly linked to the Title 42 expulsions and the decision to only exempt children (but
not their parents and adult relatives) from expulsion.
52. Almost all of the parents I have worked with who sent their kids ahead alone as
unaccompanied minors did so only after first being expelled as a family unit.
53. I have worked with dozens of such families, including many who sent across young
children. Some families decided to only send their older children across the border alone,
keeping their younger children with them. After sending their kids across the border
unaccompanied, the parents then continue to try and enter the country, as single adults.
54. I have worked with clients who have attempted to cross into the United States as many as
nine times out of desperation, being expelled each time without an asylum hearing that
could have been provided the first time they sought entry, thereby avoiding multiple
contacts with CBP.
55. Instead of deterring families from coming into the United States, Title 42 forces families
to enter again and again, because there is no other way to seek protection or to reunite
with their children.
56. In many of these cases, unless the parent is allowed to enter the United States, the child
would be stuck in government foster care indefinitely, potentially for years. I frequently
field phone calls and emails from attorneys representing unaccompanied minors in ORR
custody who have been designated “Category 4”—meaning that there is no parent or
other sponsor able to take custody of the child in the United States.
DHS’s Selective Application of Title 42 Discriminates on the Basis of Nationality.
57. Although the Title 42 policy on its face applies to undocumented persons regardless of
country of origin, in reality, DHS engages in selective application of Title 42 that
discriminates on the basis of nationality.
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58. As the federal government has acknowledged, DHS generally does not expel nationalities
that the Mexican government refuses to accept. See Centers for Disease Control and
Prevention, Order Suspending the Right to Introduce Certain Persons from Countries
Where a Quarantinable Communicable Disease Exists (Aug. 2, 2021) (hereinafter “CDC
Order”) at 15, https://www.cdc.gov/coronavirus/2019-ncov/downloads/CDC-Order-
Suspending-Right-to-Introduce-_Final_8-2-21.pdf. Mexico in turn “will only accept the
return of Mexican and Northern Triangle nationals,” with “limited exceptions.” Id.
59. By adopting Mexico’s nationality preferences, DHS is distinguishing between migrants
under Title 42 for geopolitical reasons, rather than on the basis of public health.
60. As a result of DHS’s selective enforcement, Mexican, Guatemalan, Honduran, and
Salvadoran migrants are much more likely to be expelled into Mexico compared to other
nationalities, even though they may present the exact same COVID-19 risk. See CBP,
Southwest Land Border Encounters (last visited Aug. 10, 2021),
https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters.
CBP Can Process More Families at Ports of Entry, Including at El Paso.
61. Rather than force families to cross dangerous terrain to seek asylum, CBP can and should
make orderly presentment at ports of entry a possibility for asylum-seeking families. I
have worked with many families who approached ports of entry for an opportunity to
prove their asylum claims before they were prevented from entering the port.
62. Although the government claims that every individual takes hours to process, based on
my experience, CBP is capable of processing people more quickly than that.
63. I am also familiar with families and individuals being processed for humanitarian
exemptions from the Title 42 policy via the so-called consortium process, which enables
certain NGOs to identify and refer vulnerable individuals to the federal government to
receive exemptions. Those individuals are able to be quickly processed without being
detained for hours in congregate settings.
64. Over the past several months, I have maintained a waiting list of hundreds of families
who were waiting for a humanitarian exemption from Title 42. Many of these families
have been waiting in Mexico for a chance to pursue their asylum claims in the United
States since before the onset of Title 42, due to various other Trump administration
policies undermining access to asylum. Some of those families have waited their turn for
1-2 years under dangerous conditions, hoping to follow the law and do everything the
“correct” way. Now that NGOs responsible for referring exemption requests to DHS are
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no longer accepting new cases because of a backlog, those families whose desperation
has reached a tipping point after years of suffering are now left with no options.
65. In the past, families were able to be processed much more quickly than the amount of
time that the government is currently contending. Prior to 2018, I seldom witnessed
noncitizens being immediately issued Notices to Appear (NTA), which formally
commence removal proceedings and create a process for asserting asylum claims. Now,
DHS has opted to issue NTAs immediately and asserts that the complexities of issuing an
NTA requires significant processing time (and the detention of the noncitizen while the
paperwork is being prepared). However, as past practice would indicate, DHS is not
required to issue NTAs immediately, particularly when doing so unnecessarily prolongs
detention and strains processing capacity. DHS and CBP could easily address their
capacity issue by merely returning to historical practices. In the past, noncitizens could be
quickly issued release documents and informed to check in with ICE at their ultimate
destination to receive their NTA.
66. Another practice that should be adopted to speed up the processing times and reduce time
in congregate settings is to utilize available space around the ports of entry. For example,
due to my extensive work in the El Paso area, I am extremely familiar with the port of
entry and its ability to utilize outdoor spaces for processing. I have witnessed the use of
mobile fingerprinting stations, trailers, and tents for the quick processing of migrants.
The El Paso port of entry and nearby Border Patrol facilities have ample outdoor spaces
and empty parking lots where mobile processing stations could be set up for faster and
COVID-safe processing. Notably, CBP has developed innovative ways to process
noncitizens, but unfortunately is employing these methods to undertake Title 42
expulsions, and not for regular asylum processing.
Testing, Quarantine, and Shelter Capacity
67. Through my extensive work at the border, I have personal experience with the non-
governmental organizations (NGOs) that assist noncitizen families in Juarez and El Paso
as well as Nuevo Laredo and Laredo.
68. My work with Annunciation House for a decade provided me with intimate knowledge in
the ways that these shelters and organizations can and are more than willing to
accommodate larger numbers of people entering the country.
69. The work of these organizations was happening prior to the pandemic, it continued
through the pandemic, and currently they are waiting to be able to take in more people. I
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have personally been responsible for setting up pop-up shelters in churches, community
centers, and hotels when expansions were needed.
70. Shelters and other NGOs on both sides of the border have worked to provide COVID-19
testing and implement steps designed to reduce the risk of COVID-19 transmission in
migrant shelters. For example, from March 2020 through November 2020, I observed
first-hand the various mitigation measures undertaken in the migrant shelter system in
Ciudad Juarez, Mexico. There were various “filter” shelters erected to house, quarantine,
and treat migrants who were COVID-19 positive and those who had not yet been tested.
The rest of the shelters severely restricted in-and-out privileges to reduce the risk of
contagion, and masks are generally required indoors. Hand sanitizer, bleach, and soap
were plentiful. Visitation was limited to those providing essential services (such as legal
aid) and occurred outdoors, masked, and with sufficient social distancing.
71. Similarly, I work closely with a network of migrant shelters in Nuevo Laredo and
Monterrey, Mexico. While I have not visited them in person, I have heard about their
COVID-19 protocols from both the pastor managing the shelters and the migrants
themselves. Migrants are instructed not to leave the shelters except for doctor’s
appointments or work; regardless, most rarely leave upon arrival because of the danger
faced by migrants in Nuevo Laredo. There are plentiful masks, hand sanitizer, and
cleaning supplies. The shelters are cleaned twice per day by the migrants. People who test
positive for COVID-19 or who have high temperatures are transferred to a special
quarantine shelter and isolated from the general population. A local lab comes to the
shelters to administer COVID-19 tests as needed.
72. In both Juarez and Nuevo Laredo, families who receive a humanitarian exemption from
Title 42 are able to access free or affordable COVID-19 tests before their appointments at
the ports of entry, to ensure that they are not carrying the virus into the United States.
73. As part of my representation of clients seeking humanitarian exemptions, I have tracked
their COVID-19 test results because those who test positive for COVID-19 were rejected
by CBP.
74. Overall, 2.56% of my clients (22 out of 858) tested positive for COVID-19 in Mexico
when they received a test prior to their appointments at the Laredo Port of Entry.
75. On the U.S.-side, shelters like Annunciation House that receive families released by CBP
have developed procedures for COVID-19 testing, quarantine, and isolation as well.
They provide rapid tests on-site and move positive families to quarantine locations.
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76. Vaccinations are also available in Texas on demand without an appointment.
77. Prior to, during, and after the pandemic, I have been and will be working with families to
ensure safe and humane processing into the United States while they await an asylum
decision. Based on years of direct experience, I know there are ways to process people
quickly and in a manner that is safe for both my clients, border communities, and
government personnel.
I declare under the penalty of perjury under the laws of the United States of America and the
State of California that the foregoing is true and correct. Executed in El Cerrito, California.
Dated: August 10, 2021
/s/ Taylor Levy
TAYLOR LEVY
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1
DECLARATION OF JULIA NEUSNER
I, Julia Neusner, pursuant to 28 U.S.C. § 1746, declare as follows:
1. I am a Legal Fellow in the Refugee Protection Program at Human Rights First. I
make this declaration based on my personal knowledge and my interviews with
refugees and migrants who have entered or attempted to enter the United States along
the U.S.-Mexico border.
2. This declaration addresses three overarching issues. First, under Title 42 asylum
seekers are being expelled to Mexico where they are targeted by criminal
organizations for kidnappings, extortion, or other attacks. By expelling them, often at
night, the U.S. government is putting vulnerable people directly in harm’s way.
Second, DHS is conducting expulsions in a manner that increases the likelihood that
they will get sick, specifically by flying them from one part of the border to another
for expulsion without testing or basic COVID protocols (so-called “lateral flights”).
Third, asylum seekers blocked from seeking safety in the United States are living in
encampments in unsafe conditions, where they lack access to adequate health care
and become even more obvious targets for gangs and criminal elements.
My Research and Expertise
3. I have worked for Human Rights First since September 2020. Human Rights First is a
national non-profit, non-partisan organization that provides pro bono legal services to
asylum seekers and advocates for the United States government to uphold its human
rights obligations abroad and at home, including its duties to refugees and asylum
seekers under U.S. law and international treaties. I received a Juris Doctor from
Stanford Law School and a master’s degree in international policy from Stanford
University in June 2020.
4. During the past year I have led Human Rights First’s research on the effects of the
Title 42 expulsion policy, interviewing hundreds of asylum seekers returned to
Mexico or turned away at ports of entry. I conducted field research in migrant shelters
and tent encampments in Tijuana for three weeks in March and April 2021 and in
Ciudad Juárez for one week in June 2021. I also remotely interviewed hundreds of
asylum seekers located in Mexican cities including Piedras Negras, Monterrey,
Reynosa, Matamoros, Nuevo Laredo, and others. I have also interviewed numerous
individuals working with asylum seekers, including Mexican immigration officials,
migrant shelter staff, pastors and members of religious orders assisting asylum
seekers, non-profit legal and social service providers, and private immigration
attorneys. Based on these investigations, I co-authored four human rights reports.1
1 Human Rights First, “Humanitarian Disgrace: U.S. Continues to Illegally Block, Expel
Refugees to Danger,” (December 2020) available at
https://www.humanrightsfirst.org/resource/humanitarian-disgrace-us-continues-illegally-block-
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2
Asylum Seekers Expelled to Mexico Face a Perilous Security Situation
5. Asylum seekers sent by DHS to Mexico under Title 42 are exposed to violent attacks
and exploitation. During the time asylum seekers are forced to wait in Mexico for the
opportunity to request U.S. protection, they have been and are targeted based on
characteristics that mark them as foreign nationals in Mexico, including their accent
and/or primary language and physical appearance, as well as on account of race,
gender identity, and sexual orientation, among other characteristics.
6. Many asylum seekers and service providers told me that criminal organizations
specifically target migrants returned to Mexico by DHS for kidnappings, extortion,
and other attacks—often with the participation or complicity of Mexican police
and/or other Mexican security forces. DHS sometimes expels families in the middle
of the night without their shoelaces, a practice which clearly marks the families as
expelled migrants and makes them even more vulnerable to kidnapping by cartels.2
More than ten asylum seekers told me they were kidnapped after DHS expelled them
to unfamiliar cities far from where they’d entered the U.S. Some were kidnapped
within minutes of being expelled.
7. My colleagues at Human Rights First and I track publicly reported cases of violent
attacks against asylum seekers blocked or expelled to Mexico under Title 42. This
tally is based on direct interviews my colleagues and I conduct with asylum seekers
and/or their attorneys, incidents reported by other human rights groups and service
providers (including Al Otro Lado, Human Rights Watch, Amnesty International, and
Doctors Without Borders), as well as published media accounts.
8. As of June 17, 2021, Human Rights First has tracked 3,250 kidnappings and other
attacks, including rape, human trafficking, and violent armed assaults, against asylum
seekers and migrants expelled to Mexico or blocked from crossing the U.S.-Mexico
expel; Human Rights First, Al Otro Lado, and Haitian Bridge Alliance, “Failure to Protect:
Biden Administration Continues Illegal Trump Policy to Block and Expel Asylum Seekers to
Danger,” (April 2021) available at https://www.humanrightsfirst.org/resource/failure-protect-
biden-administration-continues-illegal-trump-policy-block-and-expel-asylum; Human Rights
First: “Update: Grave Dangers Continue for Asylum Seekers Blocked In, Expelled to Mexico by
Biden Administration,” (June 2021) available at
https://www.humanrightsfirst.org/resource/update-grave-dangers-continue-asylum-seekers-
blocked-expelled-mexico-biden-administration. Human Rights First and Hope Border Institute,
“Disorderly and Inhumane: Biden Administration Continues to Expel Asylum Seekers to Danger
While U.S. Border Communities Stand Ready to Welcome.” (July 2021) available at
https://www.humanrightsfirst.org/sites/default/files/DisorderlyandInhumane.pdf.
2 “Failure to Protect: Biden Administration Continues Illegal Trump Policy to Block and Expel
Asylum Seekers to Danger,” p. 28.
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3
border since January 2021.3 This tally includes incidents published in media,
interviews of asylum seekers by Human Rights First, information from attorneys and
humanitarian services providers at the border, as well as more than 2,700 reported
incidents of violent attacks against migrants and asylum seekers stranded in Mexico
that were received through an ongoing electronic survey conducted by the
organization Al Otro Lado and reviewed by Human Rights First.
9. For example, a Honduran woman I interviewed in a Juárez shelter told me that she
and her seven-year-old daughter were kidnapped immediately after DHS expelled
them to Juárez via a lateral expulsion flight from the Rio Grande Valley in April
2021. Mexican migration officials at the State Population Council (COESPO) of
Chihuahua had told the woman that shelters were full and that the family had to find
housing on their own. Immediately after mother and child left the COESPO office,
armed men kidnapped them and held them captive for two months in a house where
they were forced to sleep on the floor with dozens of other kidnapping victims and
deprived of sufficient food and clean drinking water, with nothing but potatoes and
eggs to eat. They managed to escape while being transported to another location. As
of June 2021, the family remained in danger in a Juárez migrant shelter, experiencing
nightmares and difficulty sleeping due to the trauma they suffered.4
10. I interviewed at least 20 asylum seekers who had requested U.S. protection after
having been kidnapped in Mexico who reported that DHS expelled them without
asking if they feared returning to Mexico. DHS expelled a Salvadoran woman and her
two children in June 2021 immediately after the family had escaped from kidnappers
who had forcibly held them for 10 days, extorted the woman’s sister for thousands of
dollars, and fired shots at the family as they ran away. The woman told me that U.S.
immigration officers mocked her as she begged them not to return the family to
Ciudad Juárez just hours after they crossed the border to ask for protection in the
United States. On their return, Mexican immigration officers took her cell phone. As
of June 2021, the woman’s sister was still receiving threatening messages from the
kidnappers and the family was terrified to leave the Juárez shelter where we spoke.5
11. Another Guatemalan family with two young children reported having been kidnapped
immediately after DHS expelled them to Nogales by armed men who demanded a
$15,000 ransom for their release. Border Patrol agents had transferred the family 17
hours by bus from where they had entered Texas to request asylum. When their
3 Human Rights First, “Human Rights First Tracker of Reported Attacks During the Biden
Administration Against Asylum Seekers and Migrants Who Are Stranded in and/or Expelled to
Mexico” (last updated 6/17/2021) available at
https://www.humanrightsfirst.org/sites/default/files/AttacksonAsylumSeekersStrandedinMexico
DuringBidenAdministration.6.17.21.pdf
4 Disorderly and Inhumane: Biden Administration Continues to Expel Asylum Seekers to Danger
While U.S. Border Communities Stand Ready to Welcome,” supra note 1 at 3.
5 Id. at 4.
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4
captors released them, they put them on a bus to Tijuana, where the traumatized
family was still waiting in fear when I interviewed them in April 2021.6
12. I interviewed many asylum seekers who were kidnapped or attacked in Mexico while
waiting for U.S. asylum processing to resume. A Honduran woman fleeing death
threats by a gang that murdered her partner was kidnapped in Mexico and trafficked
for sexual exploitation for three months before she managed to escape in April 2021
and reunite with her 12-year-old daughter, who had been staying with another family
member in Mexico. I spoke with the woman by phone while she was hiding in a
Tijuana shelter, traumatized, depressed, and terrified that her traffickers would find
her again. Though she has contacted multiple legal services organizations for help,
she and her daughter have been unable to access the Title 42 exemption process and
remain in danger in Mexico as of August 2021.
13. Several asylum seekers told me that Mexican police refused to investigate
kidnappings and attacks against them or were complicit in their perpetration. A
Honduran mother with three young boys recalled being kidnapped by Mexican police
in Reynosa at the end of March 2021. Police ordered her and other families onto a
bus, then sold the busload of people to a cartel, who held them captive until her
family paid ransom. Badly shaken, she and her children crossed the U.S. border to
seek asylum. DHS expelled them back to Mexico.7 Another Salvadoran mother told
me that Mexican police kidnapped, tortured, and robbed her 16-year-old son in
Piedras Negras in April 2021 while the family was waiting to request U.S. asylum.
14. Asylum seekers fleeing gender-based violence risk being discovered by their
persecutors in Mexico. I interviewed several women escaping abusive ex-partners
who had located them in Tijuana. In April 2021, I spoke with a Guatemalan
Indigenous woman who was raped in the street in Tijuana after DHS expelled her
there with her three young children in February 2021. The family had crossed the
border at Mexicali to seek asylum after fleeing abuse and threats by the woman’s ex-
partner. I also interviewed a Salvadoran mother and children who had entered the
United States seeking protection in March 2021 after the woman’s ex-partner had
tried to kill her. DHS expelled them to Tijuana, where the woman received
threatening WhatsApp messages from her abusive ex-partner, who knew which
shelter she was staying at and told her he had eyes on her in Tijuana.8
6 Julia Neusner, “Kidnapped, Raped, and Robbed: Dangerous Title 42 Expulsions to Mexico
Continue,” (May 2021) available at https://www.humanrightsfirst.org/blog/kidnapped-raped-
and-robbed-dangerous-title-42-expulsions-mexico-continue.
7 “Failure to Protect: Biden Administration Continues Illegal Trump Policy to Block and Expel
Asylum Seekers to Danger,” supra note 1.
8 “Kidnapped, Raped, and Robbed: Dangerous Title 42 Expulsions to Mexico Continue,” supra
note 6.
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15. Mexican asylum seekers are particularly vulnerable, trapped in the very country they
are trying to flee. Multiple Mexican asylum seekers have reported that they were
fleeing the country after brutal murders of their family members. A Mexican
grandmother fled to the border with her nine young grandchildren and their mothers
after gang members had murdered the woman’s two sons on the doorstep of the
family home and threatened the rest of the family. They had also shot her two-year-
old granddaughter, who had been standing outside with her father. The bullet passed
through the child’s body and out her arm. Another Mexican grandmother told me a
cartel had killed her husband, daughter, and son. They took over her house, forcing
her to flee with her two grandchildren before they had time to gather anything for the
trip. When I met the families in a Tijuana shelter in April 2021, they had been waiting
for more than a month for asylum processing to resume, terrified their persecutors
would find them there.9 In a shelter in Ciudad Juárez, I interviewed a grandmother
from Michoacán fleeing with her surviving family members who had hid in her home
helpless as masked men abducted her husband and adult son, who were found the
next day shot to death. Several family members fleeing with her reported that they
continue to receive death threats, but as of late June 2021, the family could not seek
asylum in the United States due to Title 42.10
DHS Endangers Migrants By Moving Them from One Border Location to Another for
Expulsion
16. At various points in 2021, DHS has transferred migrants via plane from one sector of
the border to another, and then expelled them at the second location, in a program
known as “lateral transfers.” In April 2021, I interviewed more than 50 families with
young children in a shelter who had been expelled to Tijuana via lateral transfer
flights after having entered the United States in the Rio Grande Valley or other parts
of the border.11 The families recalled nearly identical experiences in DHS custody.
They recalled being detained with their children for days in extremely cold, crowded
holding cells after border patrol agents seized all but one layer of their clothing. Many
had to sleep on the floor. All reported that DHS did not separate sick detainees from
the group, provided minimal or no medical care, and failed to test anyone for
COVID-19. The families were transferred in packed vans to the airport, then flown
1,500 miles to San Diego, where they were again packed into vans and expelled to
Tijuana. Some told me that other families they’d met in the holding cells were
released into the United States.
9 “Kidnapped, Raped, and Robbed: Dangerous Title 42 Expulsions to Mexico Continue.”
10 Disorderly and Inhumane: Biden Administration Continues to Expel Asylum Seekers to
Danger While U.S. Border Communities Stand Ready to Welcome,” supra note 1 at 4.
11 See Kate Morrisey, “Biden expelling asylum-seeking families with young children to Tijuana
after flights from Texas” San Diego Tribune (April 2021) available at
https://www.sandiegouniontribune.com/news/immigration/story/2021-04-09/biden-expelling-
families-tijuana
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17. All families transferred from the Rio Grande Valley reported that DHS seized all their
belongings, including clothing, medication, and food for their children, and did not
return their belongings when they were expelled. Most reported receiving little or no
food in DHS custody. I watched Mexican government vans deliver a group of about
forty migrants to the shelter who had been transferred by flight from the Rio Grande
Valley earlier that day. They exited the van with no belongings except a clear plastic
bag containing their cell phones and documents. Their shoelaces had all been
removed. The pastor running the shelter told me that the Mexican government had
been delivering 50 to 100 asylum seekers expelled this way each day for weeks, and
that many were arriving at the shelter weak and without having eaten for several
days.12
18. A Honduran woman told me DHS expelled her while she was visibly limping due to
an injured ankle along with her seven-year-old daughter to Ciudad Juárez via a lateral
expulsion flight in April 2021, refusing to provide even ice to address the swelling.13 I
also spoke to a Honduran grandmother with blindness who told me that in July 2021,
DHS expelled her alone to Reynosa after separating her from her daughter and
grandchildren, with whom she had entered the U.S. to ask for asylum protection after
the family fled death threats by gangs in Honduras and was kidnapped for 15 days in
Mexico. A pastor had to find another asylum seeker to take care of the grandmother,
who requires 24-hour assistance due to her blindness.
Asylum Seekers Expelled to Mexico Are Living In Places Without Access to Adequate
Health Care, and Where Criminal Elements Can Easily Prey on Them
19. Asylum seekers blocked from the U.S. border or expelled to Mexican border cities
lack access to secure housing. In August 2021 I have spoken with asylum seekers and
service providers who reported that shelter capacity is lacking in the Mexican cities of
Tijuana, Ciudad Juárez, Piedras Negras, and Reynosa; and that many are forced to
sleep in the streets or in other precarious conditions. Large tent encampments have
emerged in Tijuana and Reynosa. I spoke with many asylum seekers with medical
issues who endure challenging living conditions and lack access to the medical care
they need. Without money, resources, or employment opportunities, many asylum
seekers who have been expelled to Mexico do not have enough to eat.
12 “’They Lied to Us’: Biden Administration Continues to Expel, Mistreat Families Seeking
Asylum.” Human Rights First (May 2021) available at
https://www.humanrightsfirst.org/blog/they-lied-us-biden-administration-continues-expel-
mistreat-families-seeking-asylum
13 Disorderly and Inhumane: Biden Administration Continues to Expel Asylum Seekers to
Danger While U.S. Border Communities Stand Ready to Welcome,” supra note 1.
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20. In Tijuana, more than 2,00014 asylum seekers blocked from crossing the border or
returned to Mexico by DHS under Title 42, including large numbers of children, are
sheltering in a makeshift tent encampment immediately adjacent to the San Ysidro
port of entry, which renders them an obvious and easy target for rape, kidnapping,
human trafficking, robbery, assault, and extortion. The Mexican government does not
provide regular police or private security to guard the camp. When I visited the camp
in April 2021, there were no police officers in sight. A Honduran asylum seeker who
was staying in the camp told me that in April 2021, Mexican men he believed to be
gang members had approached him in the camp and asked him to transport drugs and
threatened him with death if he refused.
21. Multiple asylum seekers staying in the camp told me that people they believed to be
gang members had forcibly removed at least eight Central American men from their
tents and forced them into cars. As of May 2021, the men who were taken had not
returned to the camp.15 Some Mexican asylum seekers refused to leave their
tents, frightened at the prospect that they might be seen by gang members patrolling
the area. One father had been beaten nearly to death by gang members that were
trying to recruit his sons in Michoacán. He told me, “the same gang that was after us
back home operates here.” He and his sons were so afraid to go outside that they went
to the bathroom in buckets inside their tent. A trans woman from Chiapas, Mexico
crossed the border to seek U.S. asylum after she suffered abuse for her gender
identity. U.S. immigration officers expelled her to Tijuana, and as of April 2021 she
remained in the tent encampment, constantly afraid for her safety.16
22. More recently, I interviewed a Mexican woman by phone who, after being threatened
with death in Michaocán, asked for U.S. asylum with her family at the San Ysidro
port of entry in July 2021. After DHS turned the family away, they tried to sleep in
the tent encampment near the port of entry. A man in the encampment charged her
money to stay there, then a group of men assaulted the woman’s teenage daughter.
23. Another family from Michoacán had a similar experience in June 2021. After gang
members tried to kill them, they asked for asylum at the San Ysidro port of entry and
were turned away. A man in the tent encampment who had offered to help the family
assaulted the mother. I also spoke to a Salvadoran man who was robbed of all his
belongings in the Tijuana tent encampment in July 2021 after he had attempted to ask
for asylum at the San Ysidro port of entry and DHS officers turned him away.
Though both families from Michoacán and the Salvadoran man have contacted
advocacy organizations for help, they have been unable to access exemption
processes and all remain in danger in Mexico as of August 2021.
14 “Failure to Protect: Biden Administration Continues Illegal Trump Policy to Block and Expel
Asylum Seekers to Danger” supra note 1.
15 Id.
16 “Kidnapped, Raped, and Robbed: Dangerous Title 42 Expulsions to Mexico Continue,” supra
note 6.
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24. In Reynosa, approximately 3000 migrants and asylum seekers are staying in a tent
encampment in Plaza las Américas, the city’s center plaza, where they endure
horrendous living conditions and are vulnerable to violent crime.17 I interviewed more
than 15 asylum seekers by phone in July and August 2021 who are currently staying
in the Reynosa encampment, sleeping on the ground in tents or out in the open. All
reported horrible living conditions in the encampment, including dirty, fly-infested
toilets, excruciating heat, and destructive storms. An Afro-Honduran woman told me
she developed a fungus on her feet after walking barefoot in the toilet area. Many
reported that their children became sick with nausea and flu symptoms in the
encampment. Several asylum seekers told me they or their children lost significant
amounts of weight because they did not have enough to eat.
25. Asylum seekers living with health conditions in the Reynosa encampment are unable
to obtain the care they need. I spoke to a Honduran woman who, after fleeing death
threats by gang members who killed her brother, is now staying with her 12-year-old
daughter in the Reynosa tent encampment. The mother, who has kidney disease, is
experiencing severe abdominal pain, headaches, and back pain from sleeping on the
ground. Her daughter is so depressed that she’s stopped speaking and her hair is
falling out. They have been unable to obtain healthcare. Though they have contacted
advocates for help, as of August 2021 they remain in danger in Reynosa.
26. Another Honduran woman and her 9-year-old daughter were robbed of all their
money and valuables in Reynosa immediately after the U.S. government expelled
them there in July 2021. After sleeping on the ground in a tent for weeks, cysts in the
woman’s breasts became inflamed and painful. Her daughter became ill with stomach
pain so severe she could not sit up.
27. I interviewed another Honduran woman who was kidnapped with her 9-year-old son
and held captive in horrendous conditions for 10 days before the woman’s sister
managed to pay ransom. Unable to ask for U.S. protection at the port of entry due to
Title 42, the traumatized family went to the Reynosa tent encampment, where they
slept on the ground for months. The child became weak, tired, and malnourished. The
mother, who had been diagnosed with an ovarian cyst, was in severe pain, but as of
July 2021, neither could access medical care in Reynosa.
28. I interviewed many asylum seekers facing threats to their personal security in the tent
encampment. At least one asylum seeker has been kidnapped directly from the
encampment.18 In July 2021 a Honduran woman told me she was terrified to leave her
17 Sandra Sanchez, “Mexican officials order migrant shelter in Reynosa to evacuate or face
bulldozing,” Border Report (July 2021) available at https://www.borderreport.com/hot-
topics/immigration/mexican-officials-order-migrant-shelter-in-reynosa-to-evacuate-or-face-
bulldozing/
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9
tent because of a man in the camp who was harassing her and had repeatedly
threatened to assault her. Another Honduran woman told me that in July 2021, a
group of men had repeatedly recorded photos and videos of her teenage daughters,
who were terrified to leave their tents for fear of being kidnapped. Another Honduran
woman fleeing domestic abuse with her 8-year-old son told me she was robbed of all
her belongings in Mexico before asking for U.S. protection. DHS expelled her to
Reynosa where, desperate to avoid the tent encampment, she accepted an offer to
work and live with a local family. Her employer repeatedly abused her in August
2021, forcing her to stay in the encampment, where she and her son remain in danger.
I declare under penalty of perjury under the laws of the United States and New York that the
foregoing is true and correct.
Executed on: August 10, 2021, in Brooklyn, New York, United States.
Signature:
Julia Neusner
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AFFIDAVIT OF JENNIFER K. HARBURY
RE: IMPACT OF TITLE 42 ON ASYLUM SEEKERS IN REYNOSA, MEXICO
AUGUST 9, 2021
I, Jennifer K. Harbury, declare under penalty of perjury pursuant to 28 U.S.C. §1746, that
the following is true and correct to the best of my knowledge:
1. I am submitting this declaration to provide information about the severe harm that Title
42 is inflicting on the migrant families currently being expelled to Reynosa, Mexico. This
is a city in Tamaulipas, the most dangerous Mexican state along our southern border,
where powerful gangs and cartels target and brutalize migrants on a daily basis. These
criminal networks operate with impunity because local police and officials are unable and
often unwilling to protect migrants. I have met with and interviewed hundreds of migrant
families who, because of Title 42, have suffered one or even multiple acts of kidnapping,
extortion, rape, and/or assault. There have been many deaths as well.
2. I graduated from the Harvard School of Law in June, 1978 and received my Texas law
license shortly thereafter. I practiced law there until 2018, when I went into inactive
status. Most of my practice focused on civil rights issues here in the Texas-Mexico
border area of the lower Rio Grande Valley. I have also spent substantial time periods
monitoring and assisting human rights in Guatemala and am very familiar with the
realities on the ground in Central America.
3. I am a founding member of the Angry Tias and Abuelas, (“Angry Tias”), an organization
based here at the border, and dedicated to the preservation and promotion of human rights
and human dignity for migrants on both sides of the Rio Grande. Our organization is
made up of volunteers who provide humanitarian assistance to migrants, including basic
necessities, transportation, shelter and other support. We assist thousands of migrants
every year. In addition to meeting their physical needs, the Angry Tias collaborate with
local NGOs, provide funds for legal counsel, and highlight the plight that asylum seekers
face in media and policy circles.
4. In 2017 I began to do extensive volunteer work in Reynosa, Mexico with the asylum
seeker community there. In late 2018 I retired from my public interest legal career and
began to do full time volunteer work there, as well as on the Texas side of the border.
This work has included interviews of thousands of migrant families over the years.
Although the United States government began sending migrant families back to Reynosa
under Title 42 in spring 2020, this practice greatly expanded earlier this year. That is
when I began to interview as many families as possible. I would estimate that I have
personally interviewed several hundred families this year alone.
5. This declaration is based on my direct experience and work with migrant families since
the United States government began sending them back to Reynosa under Title 42. I have
provided support to well over 300 families subject to Title 42 this year alone. This has
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included assisting them in obtaining needed exemptions to lawfully cross the border on
humanitarian grounds.
Dangers for Expelled Migrant Families
6. Reynosa, Mexico is one of the most dangerous areas anywhere in the world. Reynosa is
in Tamaulipas state, which is categorized as a Category Four “Do Not Travel” security
risk by the U.S. Department of State due to danger stemming from crime and
kidnapping.1 This is equal to the ranking of areas like Afghanistan and Iraq. U.S. officers
are warned not to enter this region. This extraordinary danger results from the total
control of the area by violent gangs and cartels. As the State Department notes: “Heavily
armed members of criminal groups often patrol areas of the state and operate with
impunity particularly along the border region from Reynosa to Nuevo Laredo. In these
areas, local law enforcement has limited capacity to respond to incidents of crime.”2
7. Migrant families are a favorite target for kidnapping and trafficking throughout
Tamaulipas, and especially in Reynosa. This is because it is well known that there will be
no consequences for such crimes. Local officials and police are unable and often
unwilling to protect the migrants. It is also widely understood that, although the migrants
themselves are penniless, they have relatives in the north who will do anything to save
them. Even impoverished friends and family members will take on heavy debts to rescue
their loved ones. Thus, gang and cartel members have great incentive to kidnap migrants,
and hold them for ransoms of $5,000 or per person, or even larger amounts. This has
become a booming business.
8. To make matters worse, most of the Mexican government officials in the region are fully
entwined with, or have already joined, the gangs/cartels. For example, in February 2019,
Telemundo aired footage showing that a number of families were being secretly held in
the basement of the Mexican immigration building for $3000 ransom.3 The monies were
traced back to the Reynosa Director of the National Institute of Immigration (“INM”)
himself. This is but one example. I have spoken to many families who have been robbed
and/or kidnapped by local officials.
9. Currently, when migrants are expelled from the United States back to Reynosa under
Title 42, they must walk back across the international bridge to the Mexican INM
building. There they are processed back into the country. The majority of the migrants
tell me that they were taken to side rooms and thoroughly searched, sometimes strip-
searched, and that the Mexican official confiscated all of their money and any valuables,
including their phones. Some reported that they had to call a relative to send hundreds of
dollars to pay an officer before they could be released at all. The families are given no
1 U.S. State Department, Mexico Travel Advisory (July 12, 2021),
https:/travel.state.gov/content/travel/en/traveladvisories/mexico-travel-advisory.html.
2 Id.
3 Noticias Telemundo, “Revelan que policías mexicanos extorsionan a migrantes” (Feb. 14,
2020), https://www.telemundo.com/noticias/edicion-noticias-telemundo/video/revelan-que-
policias-mexicanos-extorsionan-migrantes-tmvo8890349.
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information and have no idea where to go. Those who take taxis are often kidnapped by
the drivers.
10. Most of the families initially find their way to the small park diagonally across from the
international bridge. Over two thousand migrants are there now, including elderly
persons, pregnant women, injured persons and numerous small children. Human rights
networks have provided portable toilets and tents, and local pastors provide food and
water as often as possible, but the conditions are terrible. Not surprisingly, the gangs raid
this small encampment every night, kidnapping many and dragging them away to waiting
vehicles. A local police car is parked there regularly, but the officers either look the other
way or drive off when the kidnappers arrive.
11. Two church-run shelters exist in Reynosa. But one, Casa de Migrantes, gives only three
days of lodging. The other, Senda de Vida, is suddenly under threat of demolition by
local officials despite their fifteen years of close collaboration.
12. I think that the accounts of the migrants themselves best indicate the horrific effects that
Title 42 has upon the migrant families. Set forth below are a few of the in-person
accounts I have received.4
A. A mother (“A”) tried to save her young daughter when the gangs arrived to rape her.
The gangs beat A and kidnapped the girl, who did not return for nearly a year. When
the mother received still more threats, she fled north with her mentally disabled 15-
year-old son. The son had the functional development of a 5-year-old. The trip was
terrifying. The family tried twice to cross the river, but U.S. officials sent them back
both times under Title 42. In Reynosa, the mother realized she could not keep her son
safe from the endless kidnappings and assaults going on around her. If she tried to
cross with her son again, they would both be sent back. If he crossed alone, he would
be sent to her family in the United States because Title 42 did not apply to
unaccompanied minors. Like so many other desperate parents, she finally sent him
across again, this time on his own. He was found dead shortly thereafter. Initial
reports suggest torture and mutilation. Based on my experience, I suspect the gangs
approached the boat in which he was a passenger and asked for “claves,” or
passwords each traveler gets once they have paid the proper crossing “fees” to the
gangs. If anyone attempts to cross without such payment, they are killed. Had the
gangs asked this young man for his password, he would have been unable to answer
and therefore killed.
B. A young mother (“B”), seven months pregnant, was in her car with her husband and
two small children when gang members ambushed them and opened fire with
automatic weapons. B’s husband was killed, and she took seven bullets. At the
hospital, doctors were unable to remove the bullet lodged near her cervix. Worse yet,
the killers found out that B was still alive, and that she had recognized them. She took
4 For safety reasons I am not giving names or identifying information. Moreover, I am reporting
only the cases of persons we have assisted to lawfully cross on humanitarian grounds.
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her young children and fled north. She tried twice to cross the Rio Grande with her
children, but both times U.S. officials sent the surviving members of the family back
to Mexico under Title 42 despite her serious medical condition and pregnancy.
C. An older woman (“C”) survived a gang massacre which left seven in her family shot
to death, including her 17-year-old son. C and several others were wounded but
survived. The survivors took their blind 94-year-old grandmother (C’s mother), and
fled north. They crossed the river, but U.S. officials sent them straight back under
Title 42, despite the grandmother’s frailty. The grandmother fell gravely ill back in
Reynosa, but the family, like so many other migrants, had a very hard time getting her
admitted to a hospital given the local anti-migrant sentiments. She died shortly
thereafter. C suffered a kidnapping attempt while she was with her mother at the
hospital.
D. A teenaged boy was being aggressively recruited by local gangs, but he turned them
down. To keep him alive, his mother (“D”) sent the boy with his father to a highly
remote area where communications are nearly impossible. She then fled with her
daughter, a minor who is mentally disabled. They made it to the Reynosa area, where
they were kidnapped and D was raped. They tried to cross the Rio Grande but were
sent back under Title 42. In Reynosa they were dumped back into the unprotected
Plaza near the international bridge. As described above, the gangs arrive every night
to rob and kidnap people, with the consistent acquiescence of the police officers
posted nearby.
E. A young woman (“E”)’s family testified against gang members responsible for the
kidnapping and mutilation of a relative. The gang then came after the family. E was
dragged into a car but escaped by leaping from the moving vehicle. Her shoulder was
badly smashed, requiring multiple surgeries. Her uncle was later killed, as was a
young man who grew up in their family home. She fled north and tried to cross to
Texas but was immediately sent back under Title 42 by U.S. officials. Mexican
immigration officials stole $500 from her as she returned. She then tried to take a taxi
at the foot of the bridge, but the driver kidnapped her. When she ran, he dragged her
back by her hair, but she was later able to escape and make it to a shelter. Her
shoulder then became badly infected, putting her life at risk.
F. A young Trans woman (“F”) went through hellish persecution in her homeland. The
gangs beat her so severely that she fled in early 2019. She made it to Reynosa, but
U.S. officials sent her back under the MPP program. F tried to go back to the border
for her immigration court appointment in Laredo, but the local gangs pulled over the
bus and dragged everyone off. Eventually she got away, but she had missed her
hearing. A few months ago, she tried again to cross the Rio Grande but was sent back
to Mexico. This time the gangs beat her and raped her. Worse yet, she now has HIV
from her assailants.
13. Please note that there are thousands of migrants in Reynosa, with similarly horrifying
stories and traumatic experiences, who have not yet even been interviewed.
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DECLARATION OF ERIKA PINHEIRO
I, Erika Pinheiro, declare under penalty of perjury, that the following is true and correct to the
best of my knowledge:
Summary
1. In my expertise as an attorney with 18 years of experience in the immigration legal field
who regularly works across the U.S.-Mexico border (principally in Southern California
and corresponding areas of Mexico) and who has advised the Biden Administration on
immigration policy, I have witnessed the failures and extraordinary harm of the Title 42
policy.
2. Although widespread testing and vaccination access is available in both Baja California,
Mexico and San Diego to safely process migrant families seeking asylum, CBP has
chosen to implement a policy that only exacerbates COVID-19 in the region. CBP is not
taking basic mitigation measures to limit the spread of COVID-19 among migrants and in
fact actively introduces COVID-19 into the region by flying migrants in crowded flights
from other parts of the southwest border to San Diego and expelling them.
3. Title 42 expels families into extreme danger in Tijuana, where few have access to safe
housing, or medical care, and face kidnapping, rape, extortion, and other violence on a
regular basis. Since March 2021, three of AOL’s clients have died after being denied the
ability to seek medical care in the U.S.
Experience and Expertise
4. I am the Litigation and Policy Director at Al Otro Lado (“AOL”), a nonprofit advocacy
and legal services organization based in Los Angeles, California, with offices in San
Diego, California and Tijuana, Mexico. I have been the Litigation and Policy Director
since April 2017. I am currently based primarily in Tijuana, Mexico, and oversee various
programs and operations in all AOL locations.
5. I am an immigration attorney and have been working in the immigration legal field since
2003. I hold a JD from Georgetown University Law Center, a Masters of Public Policy
from the Georgetown Public Policy Institute, and a Certificate in Refugee and
Humanitarian Emergencies from Georgetown University Institute for the Study of
International Migration. Throughout my legal career, I have specialized in high-volume
legal representation and education for immigrants detained in immigration or criminal
custody, as well as those seeking asylum at the US-Mexico border. In each position I
have held, I have created, maintained, and analyzed extensive databases to identify the
effects of policies governing the admission, detention, transfer, and release of immigrant
adults and children at the border and in criminal and/or immigration custody. Prior to
joining AOL, I administered federally funded legal access programs for immigrant adults
in ICE custody and unaccompanied children in Office of Refugee Resettlement custody,
serving thousands of individuals per year. Since 2010, I have personally observed and
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tracked migration and detention trends, especially with respect to adults, unaccompanied
children, and family units seeking asylum at the US-Mexico border.
6. AOL provides legal and humanitarian support to indigent refugees, deportees, and other
migrants, including providing free direct legal services on both sides of the US-Mexico
border and beyond.
7. As the Litigation and Policy Director, I supervise attorneys and other staff who work
directly with migrants on both sides of the US-Mexican border. I also travel frequently
across the US-Mexican border. I also engage with elected officials on immigration
matters, educate policymakers about border issues, and provide technical assistance to
Congressional committees and government agencies. From November 2020 through
January 2021, I engaged with the Biden transition team and Secretary Mayorkas in
numerous meetings concerning US border policy; since President Biden’s inauguration, I
meet frequently with officials at the White House, DHS, DOS, and other federal agencies
to participate in immigration and border security policy discussions. I am also one of the
leads of the California Welcoming Task Force, a coalition of around 100 nonprofit
organizations working with the White House, federal agencies, California state
government, local city and county governments, and Mexican government officials to
plan and execute policies related to asylum processing at the US-Mexico border.
8. I help supervise AOL’s work representing families, individuals, and children seeking a
humanitarian exemption from the Title 42 expulsion process. Since April 2021, AOL has
represented approximately 5,900 individuals, including 2,450 children in obtaining
humanitarian exemptions.
9. This declaration is based on my personal experience working with noncitizens at the US-
Mexico border as well as my experience supervising attorneys who provide legal services
to them. I am also familiar with the Tijuana – San Diego border region as I work
regularly on both sides of the border.
Vaccination and testing is widely available in Baja California
10. I have resided in Baja California since 2017, and have been on the ground providing
humanitarian and legal support to refugees and other migrants residing in Tijuana and
throughout Baja California since the start of the COVID pandemic. Generally, vaccines
and testing are widely available in Baja California, and migrants have had relatively low
COVID positivity rates as compared to the broader population due to intensive mitigation
efforts, although those efforts have been frustrated by the expulsion of individuals DHS
has brought to the region on lateral flights from other parts of the U.S., as explained
below.
11. The Mexican government has been making a concerted effort to maximize COVID-19
vaccination in the northern border region as part of its push to more fully reopen the land
border with the United States. As of August 5, 2021, more than half of adults in the five
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Mexican states along the U.S. border had received at least one dose of a COVID
vaccine.1 The adult vaccination rate is 80% in Baja California, 60% in Sonora, 75% in
Chihuahua, 56% in Coahuila, and 64% in Tamaulipas.2 In the Mexican municipalities
(the equivalent of U.S. counties) closest to the border, rates are even higher: as of July 27,
2021 at least 75% of those in border municipalities had received at least one vaccine dose
in Baja California, Sonora, Chihuahua, Coahuila, and Nuevo Leon.3 As of August 1,
2021, more than 97% of adults between 18 and 39 had received at least one dose in
Tamaulipas.4
12. Baja California is the first state in Mexico to have “fully” vaccinated its adult population
(18+); approximately 80% of the adult population has been vaccinated with at least one
shot. Vaccines continue to be regularly distributed at large-scale vaccination sites located
in all of the state’s municipalities and are available to anyone over the age of 18,
regardless of immigration status. Municipal and state departments of health also conduct
specialized outreach campaigns to vulnerable and hard-to-reach populations, such as
Indigenous communities residing in remote locations. In July and August 2021, local
health authorities held a vaccination drive at the migrant camp located outside the Ped
West Port of Entry and at seven migrant shelters, and other shelter providers have
organized transportation to bring migrants to mass vaccination sites.5 The local
departments of health continue to develop outreach strategies to vaccinate vulnerable
populations, including migrants.
13. Although there has been a recent slight increase in positive COVID cases due to the
spread of the Delta variant, numbers remain extremely low in Baja California. For
example, on August 8, 2021, there were 69 new positive cases in Tijuana, a city of
around 2 million residents. The seven-day average is 107 new positive COVID cases/day.
The rate of new COVID cases in Tijuana is exponentially lower than in San Diego
County, California, which saw 2,754 new positive cases on August 8, 2021, with a seven
day average of 1,417 new positive cases per day for a population of around 3.3 million.6
This discrepancy is likely due to the relatively high vaccination rate in Baja California
(80% adults vaccinated in Baja California vs. 73.2% in San Diego County), as well as the
consistent use of masks in most indoor spaces in Mexico. Unlike the United States, Baja
California never lifted its mask mandate, even for vaccinated individuals. I have observed
1 Gobierno de Mexico, Secretaria de Salud, COVID-19 Mexico Comunicado Tecnico Diario, at 9
(Aug. 5, 2021), https://tinyurl.com/w2enjmh3.
2 Id.
3 Id.
4 Miguel Dominguez, Afirman Vacunar Casi al 100% de Jóvenes en Tamaulipas, Reforma (Aug.
1, 2021), https://tinyurl.com/y8d476kb.
5 Alexandra Mendoza, Migrants in Tijuana vaccinated at camp, shelters (Aug. 4, 2021),
https://tinyurl.com/dmf2d9m.
6 COVID-19 Data Repository, Center for Systems Science and Engineering (CSSE) at Johns
Hopkins University, https://github.com/CSSEGISandData/COVID-19.
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almost all individuals in Baja California consistently using masks in most public indoor
spaces and crowded outdoor spaces, whereas in San Diego, I rarely, if ever, see
individuals using masks outside, and have observed a rising percentage of individuals
who do not use masks in public indoor spaces.
14. COVID-19 testing is readily available at pharmacies and health providers across Tijuana.
Pricing for tests varies among providers, but generally starts around $10-12 USD for an
antigen test. Local and state Departments of Health also have free mobile testing
programs, and have offered free COVID testing at the Chaparral migrant encampment
and at various shelters. Several local medical nonprofits also offer free testing to
migrants, and universities on both sides of the border have conducted numerous COVID-
related studies through which they have administered free tests to thousands of
individuals.7
15. Many asylum seekers have already been vaccinated before presenting at the port of entry.
Dozens of our clients have sent photos of their vaccination records. Many of our clients
have told our staff and volunteers that they are eager and willing to be vaccinated to
protect themselves and others against COVID-19.
16. Beginning in March 2021, AOL began representing vulnerable families, children, and
adults to seek humanitarian exemptions from the Title 42 expulsion process. Individuals
approved for an exemption are tested for COVID-19 before presenting at a port of entry.
A U.S.-based foundation has covered the cost of COVID testing for all of AOL’s clients,
as well as others being processed through the exemption process. CBP has required all
children seven years or older to submit a negative COVID-19 test taken within 72 hours
of presenting at a port of entry. Those who test positive are denied entry if they attempt to
present.
17. Before the widespread availability of vaccines in Baja California, AOL worked with a
network of nonprofits, international intergovernmental organizations (i.e. IOM and
UNHCR), as well as with local, state, and federal government agencies to develop
effective strategies that reduced the spread of COVID among migrant populations. AOL
helped install hand washing stations and clean water access points at shelters and medical
clinics, distributed masks and other PPE, conducted public health education, and
provided funding to build capacity at local medical nonprofits serving the migrant
population. IOM and the local government also established a COVID “filter” hotel, at
which migrants would stay for 10-14 days before moving on to shelters. AOL also
provided grocery cards, medication, PPE, quarantine housing, and other direct
7 See, e.g., City News Service, COVID-19 Survey Finds Baja California Faring Better than
Other Mexican States, KPBS (June 16, 2021), https://www.kpbs.org/news/2021/jun/16/covid-19-
survey-finds-baja-california-faring-bette/.
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humanitarian support to help migrants residing outside of the shelter system to remain in
quarantine during periods of high community spread.
CBP’s policy of lateral flights has a negative effect on COVID-19 rates in the region
18. The mitigation efforts described above were extremely successful, and we saw very little
COVID spread among migrants until March of 2021, when the US government began
flying migrants who crossed in Texas on lateral flights to San Diego and expelling them
there. Despite our regular engagement with the White House and DHS on border policy
matters, we were given no notice, and nonprofits and government agencies working in
Tijuana were ill-prepared to receive the 100 migrants being expelled each day from
lateral flights, in addition to hundreds of others already being expelled or removed to
Tijuana each day. Because migrants were placed in close proximity to one another on
lateral flights and expelled to Tijuana, we saw a much higher COVID positivity rate
among lateral flight migrants than among the local migrant population in general.
Shelters receiving lateral flight expulsions began to see more COVID positive cases, but
local health authorities and non-profits lacked the capacity and resources to quickly
create a comprehensive public health strategy to address the problems posed by lateral
flights.
19. DHS ceased the practice of lateral flight expulsions to Tijuana around June 21, 2021,
which has enabled those of us working in Baja California to reassert control over the
spread of COVID among the migrant population, especially in shelters, using the
mitigation measures described above and by promoting vaccines. However, DHS
resumed lateral flights to San Diego in the last week of July 2021, and resumed
expulsions to Tijuana on Friday, August 6, 2021, when we received 135 migrants
expelled from a flight that originated in Texas. Our shelter partners in San Diego, who
work with San Diego County and the State of California to administer COVID tests to all
migrants arriving in the region, have confirmed that the COVID positivity rate is highest
among migrants who arrive via lateral flights (as compared to migrants processed at the
Port of Entry or those who enter without inspection locally). Undoubtedly, the practice of
lateral flight expulsions has a negative effect on COVID rates in the region and
undermines the ability of government agencies and service providers on both sides of the
border to control COVID spread among the migrant population.
CBP has additional capacity to process asylum seeking families at ports of entry in the San
Diego region
20. CBP has consistently used “capacity” limitations as a pretext for reducing the number of
asylum seekers processed at Ports of Entry, both before and during the pandemic. Al Otro
Lado is the organizational plaintiff in Al Otro Lado v. Mayorkas, 3:17-cv-02366-BAS-
KSC (S.D. Cal.), filed in July 2017, a class action lawsuit challenging CBP’s practice of
unlawfully turning away asylum seekers who seek to present at Ports of Entry, as well as
“metering” policies that force asylum seekers to wait in Mexico on informal lists.
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Evidence obtained through discovery in that case, including depositions of DHS officials,
confirm that CBP has consistently understated its capacity to process asylum seekers at
Ports of Entry in an effort to reduce access to the US asylum system. An October 2020
Office of Inspector General Report, citing in part evidence obtained from a CBP
whistleblower, confirmed that CBP lied about capacity to reduce asylum seeker
processing,8 and recently, the court in AOL v. Mayorkas sanctioned the government for
destroying evidence protected by a court order. CBP officials also admitted in a
deposition that the processing of asylum seekers is given low priority among other types
of processing at ports in terms of officer and resource allocation, going so far to admit
that livestock would be given processing priority over asylum seekers. Nothing in the
recent past indicates that these policies and priorities have changed significantly.
21. In June 2021, CBP processed approximately 412,000 pedestrians at the San Ysidro Port
of Entry. Notably, CBP is processing about 500,000 less pedestrians per month at the San
Ysidro POE than they were before Title 42 was put into place; for example, in June 2019,
CBP processed over 917,000 pedestrians at the San Ysidro Port of Entry. This
discrepancy should give CBP plenty of capacity to safely process asylum seekers, even
allowing for the fact that processing refugee families takes longer than processing most
travelers.
22. Under Title 42, US citizens, Lawful Permanent Residents, and Mexicans with certain
types of visas are able to cross the border freely. Throughout the pandemic, I have
personally observed large numbers of U.S. citizens crossing the border into Tijuana,
Rosarito, and Ensenada for tourism and other “non-essential” purposes. I have also
crossed the border, on average, about once per week since June of 2020 to the present.
Based on my personal experience, CBP does not employ any COVID screening protocol
for travelers not subject to Title 42 restrictions. I have personally observed numerous
CBP officers working without masks, or with their masks pulled down around their chins.
CBP officers have never asked me any COVID or other health-related questions when
entering the United States.
CBP is not taking adequate steps to limit the spread of COVID-19 among migrants who
cross between ports of entry.
23. When CBP encounters asylum-seeking families who cross the border between ports of
entry, it does not take meaningful steps to prevent the spread of COVID-19, aside from
providing masks. Migrants are flown on full planes and ride together in busses to the
border to be expelled. CBP does not provide COVID-19 testing and only coordinates
with third parties to test migrants when they are released from CBP custody. Those who
8 CBP Has Taken Steps to Limit Processing of Undocumented Aliens at Ports of Entry, Office of
Inspector General (Oct. 27, 2020), https://tinyurl.com/266bbcfm.
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exhibit COVID-19 symptoms are not separated from others in CBP/Border Patrol
custody.
24. The state of California has provided funding for COVID testing of all migrants who come
to the California border, whether through a Port of Entry, between ports of entry, or on
lateral flights. California has established a testing, quarantine, treatment, and vaccination
protocol for all migrants, and set up several hubs in the border region to create additional
capacity. The federal government does not currently cover the costs of these regional
hubs, nor do they currently cover the costs of shelter and transportation. California state
and numerous counties have stepped in to create a robust migrant reception system that
treats migrants with dignity while protecting public health.
25. Families that are exempt from Title 42 in Tijuana are released to a network of shelters in
the San Diego area. There are two main shelter hubs in the San Diego area. Jewish
Family Service provides testing, quarantine, and case management to any migrant being
processed through the Port of Entry, including those who come on lateral flights. Catholic
Charities serves those who cross between ports. The state, counties, and cities all work
together to create local capacity for migrants as needed. For example, Long Beach, San
Diego, and other cities provided convention centers and other facilities to meet the needs
of unaccompanied children during a recent increase. The California Welcoming Task
Force, a coalition of around 100 nonprofit organizations formed in February of 2021
working with governments on both sides of the border, coordinates to ensure that all
migrants in the region receive legal, humanitarian, and other vital services upon arrival in
California.
26. The biggest challenge over the past six months has not been the capacity to serve the
number of migrants in the region, but rather the lack of processing at the ports of entry,
and an overall lack of communication from DHS regarding its implementation of Title 42
expulsions, such as through lateral flights.
Title 42 places asylum-seeking families in extreme danger
27. Migrant families expelled under Title 42 to Tijuana face extreme danger and live in
precarity. Few have access to safe housing, medical care, or work to support themselves.
They face kidnapping, rape, extortion, and other violence on a regular basis. Clients
frequently report to us that they are unable to afford food, medicine, and other basic
necessities. Families travelling with minor children frequently report kidnapping attempts
on their children. Families with children who identify as female frequently report sexual
harassment and other sexual violence. Three of our clients have died since March 2021
because they were denied the ability to seek medical care in the U.S.
28. Thousands of migrants live in a makeshift tent encampment in El Chaparral next to the
port of entry. They sleep under plastic tarps, without bathrooms, and are subject to
extreme weather conditions. There is no running water or sanitation. Organized criminal
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groups control the camp and AOL has received reports of kidnappings, assaults, and
sexual abuse against migrants. Smugglers pressure migrants into hiring them through
fraud and force. AOL has received multiple reports of migrants who were held for
ransom by smugglers. Others have been kidnapped by traffickers and forced into
prostitutions or other types of labor. The situation at the El Chaparral camp is so
dangerous that AOL does not provide services there. Aid workers have received
numerous threats from those controlling the camp. Few groups are willing to provide in-
person services, so there is a lack of food and supplies for those living in the camp.
29. Families with family members who identify as LGBTQ are frequently subjected to
violence and discrimination. One family that we represented in this process was forced to
leave from three different housing situations after the owners of each property discovered
that the mother was in a same-sex relationship. Another LGBTQ couple that we
represented were both kidnapped and raped in Mexico and both subsequently contracted
HIV. While in Tijuana, they were forced to leave a shelter because they were constantly
receiving threats. Another client, a Haitian LGBTQ man who was unable to seek asylum
due to Title 42, was living in a rented room in Tijuana when armed men broke into his
dwelling, raped him, and stole all of his belongings and documents. He had to go into
hiding because these same people continued to threaten him.
30. Migrants who are not from Mexico frequently struggle to access medical care. When they
are able to be admitted to a hospital, they frequently report discrimination at the hands of
medical staff. Multiple Haitian clients have reported to us that they refer to the hospitals
in Tijuana as “where Haitians go to die.”
31. AOL staff members transported a Honduran man with an epidural hematoma between
hospitals because the initial hospital refused to touch him without an upfront payment in
full for the emergency neurosurgery he required. At this point, he was lying on a bed with
a nosebleed and struggling to breathe. When staff members tried to call for an ambulance
because of the delicate nature of his condition, the hospital said that they were unable to
communicate with the receiving hospital and thus it would not be possible to send an
ambulance. Staff members were left with no alternative but to transport him themselves
or risk his death.
32. A Haitian woman who wanted to seek asylum along with her husband and young
daughter suffered third degree burns while living in Tijuana. Her injuries were so severe
that an external fixator had to be applied to hold the bone in her arm together. While she
was able to access emergency treatment, she was unable to access any follow-up care or
cleaning for her burn wounds. The family was living in the tent camp where she had no
access to running water or sanitation.
33. Because of Title 42, at least 13 mothers who gave birth while in CBP custody have been
expelled to Mexico along with their U.S. citizen babies. These infants were rendered
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essentially stateless in Mexico because they were expelled without any kind of legal
identity documents.
34. Title 42 has separated countless vulnerable families. A 19-year-old asylum seeker was
turned away under Title 42 in Tijuana even though he was permanently disabled after
falling off a train. He had lost both his right arm and leg and was thus forced to live at the
mercy of strangers in a shelter. He had been trying to join his mother and siblings but
Title 42 kept them separated for nearly a year.
35. Four siblings, two under 18, from Nicaragua were separated from their father due to Title
42. Their father was in the U.S. and had been granted immigration relief. When the
siblings’ mom was disappeared in Nicaragua, they fled to seek asylum and join their
father. However, Title 42 left them living in a tent camp.
36. A Honduran woman with multiple gunshot injuries and diabetes was pursuing her asylum
case in the United States in 2019. She returned to Mexico when she learned that her
teenage daughter had been raped and kidnapped. She left her two younger children in the
care of a friend in the U.S. Once she reunited with the daughter who had been raped and
kidnapped in Mexico, she was not permitted to rejoin her two minor children in the U.S.
and to continue her asylum case. Around the same time, her brother was kidnapped and
almost certainly killed by cartel members as he attempted to cross the border with a
smuggler because Title 42 closed all legal options to request asylum.
37. AOL’s clients in other cities across the southwest border face similarly dangerous
situations after being expelled through Title 42. In Reynosa, one of our clients who had
previously tried to seek asylum at the border but who was expelled under Title 42 was
kidnapped shortly thereafter with her young son. The mother and child were held for days
without food until they finally escaped.
38. Another client in Reynosa, traveling with his wife and children, was kidnapped by a
criminal group. He was tortured and left for dead, covered in blood with burn and stab
wounds all over his body. He survived and the family fled to Tijuana, unable to seek
asylum in the U.S. due to Title 42. They were then forced to live in the tent camp at
Chaparral, where the client’s wounds became infected due to lack of medical treatment
and sanitation.
39. In Nuevo Laredo, a client was waiting to be able to cross with her U.S. citizen daughter
when they were kidnapped by armed men while walking down the street. The men took
them to a house, shaved their heads, and beat them severely. The U.S. citizen daughter’s
face was slashed with a knife on both sides. She lost so much blood from her injuries that
she had to be hospitalized.
40. CBP expelled one asylum-seeking client in Nuevo Laredo in the middle of the night and
he was immediately kidnapped by gang members. His family paid the ransom and he was
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released. He was then immediately kidnapped by a cartel. His family has heard nothing
from him since.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on: August 11, 2021, in Mexico City, Mexico.
Signature:
____________________
Erika Pinheiro
August 11, 2021, in Mexico Ci
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1
DECLARATION OF SAVITRI ARVEY
I, Savitri Arvey, pursuant to 28 U.S.C. § 1746, hereby declare:
Summary
1. As a migration policy advisor who has worked with hundreds of migrants being subjected
to the Title 42 policy, I am deeply familiar with the harms that the policy has inflicted on
migrant families. The Title 42 policy has forced asylum-seeking families, including
pregnant mothers and individuals with U.S. citizen children, to live in squalid and
dangerous conditions in Mexico, often sleeping under bridges or on the street. More than
1 out of 5 of the asylum seekers I have worked with reported being kidnapped in Mexico,
and many of the women were raped during their capture. The government’s process for
exempting certain families from Title 42 is an inadequate substitute for regular port
processing of asylum seekers, all of whom have a right to be heard on their claims.
Qualifications
2. I am currently a Policy Advisor, within the Migrant Rights and Justice program at the
Women’s Refugee Commission (“WRC”), a non-profit organization that aims to improve
the lives and protect the rights of women, children, and youth displaced by crisis and
conflict. In this role, I advocate on regional protection issues for women, children, and
families in Mexico and Central America. Before assuming this role, I worked as a
consultant for WRC from March to June 2021 where I focused on issues related to access
to protection at the U.S.-Mexico border and asylum processing at ports of entry. I hold a
bachelor’s in International Relations from Connecticut College and a master’s in public
policy from the University of California (“UC”), San Diego.
3. From October 2018 to July 2021, I collaborated on an initiative as the Central America &
Mexico Policy Initiative Fellow at the Strauss Center for International Security and Law
at the University of Texas at Austin and as a Graduate Student Researcher and Border
and Migration Fellow at UC San Diego Center for U.S.-Mexican Studies to document
U.S. Customs and Border Protection’s (“CBP’s”) metering practices and the conditions
faced by people seeking protection waiting in Mexican border cities to be inspected and
processed by CBP officials. In these roles, I made regular visits to the U.S.-Mexico
border and conducted phone and in-person interviews with people seeking protection,
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2
migrant shelter staff, representatives of international and nongovernmental organizations,
and Mexican federal and local government officials in eleven Mexican border cities.1
4. I have also helped 251 people seek humanitarian exemptions from an order issued by the
Centers for Disease Control and Prevention (“CDC’s”) under Title 42 of U.S. Code,
obtain COVID-19 tests, and be successfully processed at four ports of entry2 since April
1, 2021.
5. For these reasons, I am deeply familiar with conditions at the U.S.-Mexico border and
CBP’s ability to safely process people seeking asylum at ports of entry.
The Devastating Toll of Title 42
6. Title 42 endangers the lives and safety of individuals seeking asylum, by leaving them
waiting in squalid conditions in the Mexican border cities for many months.
7. In Piedras Negras, for example, the municipal government has prevented migrant shelters
from reopening at even a limited capacity due to COVID-19. As a result, many have been
forced to sleep in abandoned houses, in the bus terminal, under bridges or on the street,
leaving them more vulnerable to the extreme elements and abuse from exploitative
actors. In these conditions, families with young children have struggled to access the
most basic necessities, such as food and water, and suffered from inadequate sanitary
conditions.
8. In addition, there are hundreds of families living in tent camps in Tijuana and Reynosa,
where they vulnerable to criminal elements and lack access to services.
9. The inability to request asylum at a port of entry forces migrants, including women, to
wait in conditions where they are vulnerable to harm and unable to access basic medical
care. Several women I interviewed have recounted being sexually assaulted or otherwise
harmed while sleeping on the street in Mexican border cities.
10. I have supported thirteen pregnant women in seeking exemptions from Title 42, most of
whom struggled to access basic medical or prenatal care in Mexico and the limited
humanitarian assistance in Mexican border cities such as Piedras Negras and Ciudad
Acuña. One woman experienced bleeding and became worried that her pregnancy was
1 Those cities are: Matamoros, Tamaulipas; Reynosa, Tamaulipas; Nuevo Laredo, Tamaulipas; Piedras Negras,
Coahuila; Ciudad Acuña, Coahuila; Ciudad Juárez, Chihuahua; Agua Prieta, Sonora; Nogales, Sonora; San Luis Rio
Colorado, Sonora; Mexicali, Baja California; Tijuana, Baja California. I have also conducted interviews in
Monterrey, Nuevo León.
2 Those four ports of entry are: San Ysidro, Eagle Pass, Del Rio, and Hidalgo.
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3
high risk, while another who was able to visit a health clinic was told that she was at risk
of a miscarriage. Others expressed deep concern that the insecurity and extremely
unstable living conditions would negatively affect the health of their babies.
11. Title 42 expulsions have also endangered asylum seekers with medical conditions,
including families with U.S. citizen children. I sought an exemption for a lesbian couple
from El Salvador who were expelled to Piedras Negras days after one of the mothers
gave birth to a U.S. citizen baby, while she was still recovering from a cesarean delivery.
The U.S. citizen baby was severely sick for several weeks, and the couple struggled to
access affordable medical care in Mexico. The couple approached the port of entry and
showed the documentation for their U.S. citizen newborn, but they were prevented from
entering the bridge by Mexican authorities who told them they needed a visa.
12. While waiting in Mexican border cities, numerous people seeking asylum who I have
spoken to in the last few months have reported being extorted, robbed, physically
assaulted, and threatened by authorities and other individuals, leaving them fearful for
their lives.
13. Individuals seeking protection in Mexican border cities face a high risk of being
kidnapped, and this risk is particularly heightened in the state of Tamaulipas, due to the
presence of the Gulf Cartel and Cartel del Noreste. Kidnappings of migrants in Mexico
that have occurred since February 2021 have been documented through public
testimonies, interviews, and an electronic survey by Human Rights First.3 Approximately
one out of every five individuals I interviewed through the exemption process
affirmatively reported that they had been kidnapped (32 people), suffered a kidnapping
attempt (20 people), or received threats of kidnapping (2 people) in Mexico. This figure
is likely a significant undercount because I did not directly solicit information about
kidnapping from individuals and many people may have been afraid to report such
experiences.
14. Kidnappings of migrants often occur at bus stations, outside migrant shelters, or outside
an international bridge or near the port of entry.
15. Title 42 expulsions, especially expulsions to Nuevo Laredo and Reynosa, Tamaulipas,
force individuals seeking protection into a situation where they can be easily targeted.
After migrants and individuals seeking protection are identified on the street, they are
3 Human Rights First, Tracker of Reported Attacks During the Biden Administration Against Asylum Seekers and
Migrants Who Are Stranded in and/or Expelled to Mexico (June 2021),
https://www.humanrightsfirst.org/sites/default/files/AttacksonAsylumSeekersStrandedinMexicoDuringBidenAdmini
stration.6.17.21.pdf.
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4
generally forced into vans by armed men and driven to a safe house where they are asked
for contacts of people will pay ransom, or their phones are searched for U.S. numbers.
Those contacts, who are usually family members in the U.S., receive a call demanding
thousands of dollars and threatening to harm those in captivity. While being held in the
safe house, women are often raped by their captors.
16. One Honduran woman I spoke with in April 2021 was expelled with her young daughter
by CBP officials at night through the Hidalgo Port of Entry. After she exited the
international bridge into Reynosa, several armed men grabbed her and covered her face
with a black hat and forced her in a car. While being held, she was raped multiple times
and she begged her captors not to harm her daughter. Her daughter was released by
herself and crossed the border unaccompanied. After a month, the woman was able to
escape with other women who were being held. She did not know where her daughter
was until she was finally contacted by a U.S. shelter.
Restoring Access to Asylum at Ports of Entry
17. Instead of forcing families to cross dangerous terrain in between ports of entry to seek
protection, CBP should restore access to asylum at ports of entry.
18. Throughout the exemption process, I have worked with many families who approached
ports of entry for an opportunity to present their asylum claims but they were blocked
from entering the port. For example, two weeks ago, a single mother with a U.S. citizen
child who has special needs approached the Eagle Pass Port of Entry but was prevented
from entering.
19. Although Defendants assert that thousands of people have been processed via ports of
entry for exemptions from Title 42 (over a period of several months), Shahoulian Decl.
(ECF No. 113-1) ¶ 11, those exemption processes cannot meet the needs of the majority
of individuals seeking protection at the border and shift burdens onto nongovernmental
organizations (“NGOs”) to gather information from vulnerable asylum seekers, including
under dangerous conditions in Mexico.
20. Many asylum seekers do not have access to NGOs, and, due to the very limited number
of exemptions granted each day, the majority of asylum seekers will not be able to obtain
an exemption from Title 42, no matter how vulnerable they are.
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5
I declare under the penalty of perjury under the laws of the United States of America and the
State of New York that the foregoing is true and correct. Executed in New York, New York.
Dated: August 10, 2021
______________________
Savitri Arvey
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1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SUPPLEMENTAL DECLARATION OF FORMER CENTERS FOR DISEASE
CONTROL AND PREVENTION (CDC) OFFICIALS
The undersigned hereby declare:
1. We make this declaration based on our own personal knowledge and if called to testify
could and would do so competently and truthfully to these matters.
2. We submit this supplemental declaration as former CDC officials to address inaccuracies
and logic shortfalls raised in Defendants’ opposition to Plaintiffs’ motion for a classwide
preliminary injunction, Opp. (ECF No. 76), and in Defendants’ supplemental declaration,
Shahoulian Decl. (ECF No. 113-1).
3. We have also carefully reviewed the CDC order issued on August 2, 20211 (hereinafter
“CDC Order”).
4. We reaffirm the view expressed in our original declaration from February 5, 2021, ECF
No. 57-6, that risks of infection can be successfully mitigated by reasonable public health
measures and that any potential risks from allowing asylum-seeking families to enter the
United States are no greater than many of the activities sanctioned by the CDC (such as
indoor sporting events and concerts, indoor schooling, travel, and other regular activities
that have resumed).
5. Moreover, compared to February 2021 and earlier points in the pandemic, the United
States is now even better equipped to safely process immigrant families, given the
availability of high effective vaccines and other interventions. Notwithstanding recent
1
CDC, Order Suspending the Right to Introduce Certain Persons from Countries Where a
Quarantinable Communicable Disease Exists (Aug. 2, 2021),
https://www.cdc.gov/coronavirus/2019-ncov/downloads/CDC-Order-Suspending-Right-to-
Introduce-_Final_8-2-21.pdf.
NANCY GIMENA HUISHA-HUISHA, et al.,
Plaintiffs,
v.
ALEJANDRO MAYORKAS, Secretary of Homeland
Security, in his official capacity, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
No. 1:21-CV-00100-EGS
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2
variants of the COVID-19 virus, there remains no valid public health basis for expelling
immigrant families.
Highly Effective, Widely Available Vaccines Protect Against All Known Variants of the
COVID-19 Virus and Reduce the Risk of Transmission in the United States.
6. In the United States, COVID-19 vaccines are now widely available and accessible to all
individuals over the age of 12, at no cost to the recipient. Vaccines are available on
demand in convenient locations, including local pharmacies.
7. As of August 10, 2021, 71% of adults in the United States have received at least one
COVID-19 vaccination shot, exceeding President Biden’s national goal.2 Vaccination
rates are higher among older, more vulnerable demographics, with more than 90% of
adults 65 or older having received at least one dose; over 80% of adults 65 or older are
fully vaccinated.3
8. Overall, as of August 10, 2021, more than 195,000,000 people in the United States (more
than 58% of total population) have received at least one dose of the COVID-19 vaccine,
and more than 166,000,000 are fully vaccinated (more than 50% of total population).4
With respect to those individuals who are vaccine-eligible (people ages 12 and up),
68.9% of that population has received at least one dose and 58.8% is fully vaccinated.
9. Although the CDC Order claims that “vaccination uptake has plateaued,” CDC Order at
10, the CDC’s own data show that the daily administration of first doses has more than
doubled over the last month (seven-day moving average increased from 218,696 daily
doses to 438,461 daily doses between July 7 and August 7, 2021).5
10. The widespread availability of vaccines has no doubt changed the course of the COVID-
19 pandemic. As shown below, the number of new daily cases, hospitalizations, and
deaths from COVID-19 have fallen drastically in the United States as vaccination
numbers have increased. Even as restrictions have been lifted, cases, hospitalizations,
and deaths are now a fraction of their peak.
2
CDC, COVID-19 Vaccinations in the United States (last updated Aug. 10, 2021),
https://covid.cdc.gov/covid-data-tracker/#vaccinations.
3
Id.
4
Id.
5
CDC, Trends in Number of COVID-19 Vaccinations in the US (last updated Aug. 10,
2021), https://covid.cdc.gov/covid-data-tracker/#vaccination-trends_vacctrends-onedose-daily.
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3
Figure 1 - Source: CDC, Trends in Number of COVID-19 Cases and Deaths in the US Reported to CDC (last visited Aug. 10,
2021), https://covid.cdc.gov/covid-data-tracker/#trends_dailytrendscases.
Figure 2 - Source: CDC, Prevalent Hospitalizations of Patients with Confirmed COVID-19, United States, August 01, 2020 –
August 08, 2021 (last visited Aug. 10, 2021), https://covid.cdc.gov/covid-data-tracker/#hospitalizations.
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4
Figure 3 - Daily Number of COVID-19 Deaths vs. Total Vaccine Doses Administered. Source: CDC, Trends in Number of
COVID-19 Cases and Deaths in the US Reported to CDC, by State/Territory (last visited Aug. 10, 2021),
https://covid.cdc.gov/covid-data-tracker/#trends_dailytrendscases.
11. Since vaccines became widely available in February and March 2021, the number of
individuals who die from or are hospitalized due to COVID has dropped significantly.
Figure 3, above, shows the inverse relationship between COVID-19 deaths and
administered vaccine doses.
12. According to the CDC, studies show that all vaccines authorized for use in the United
States—Pfizer-BioNTech, Moderna, and Johnson & Johnson—are effective against all
known variants, including the Delta variant. CDC, About Variants of the Virus that
Causes COVID-19 (Aug. 6, 2021), https://www.cdc.gov/coronavirus/2019-
ncov/transmission/variant.html.
13. Individuals who are vaccinated against COVID-19 are far less likely to become infected,
to require hospitalization, and to transmit the virus to others. Individuals receive
significant protection even after one dose of a two-dose vaccine. Vaccination produces
better protection from infection and illness than surviving a naturally occurring case of
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5
COVID-19 illness. If fully vaccinated people become infected with COVID-19 (though
still rare), they are less likely to have symptoms or to transmit the virus to others.
14. The vaccines commonly used in North America are very effective at preventing illness,
hospitalization and death from all known forms of the virus, including the Delta variant
that has become the dominant form.
15. While so-called “breakthrough” infections are possible in vaccinated individuals,
vaccinated individuals remain unlikely to develop a symptomatic illness and only very
rarely will they become seriously ill or require hospitalization even if infected.
16. According to CDC data, less than 0.001% of vaccinated individuals have died from
COVID-19. 6 Unvaccinated individuals account for more than 99% of recent COVID-19
deaths.7
17. According to a survey of 50 hospitals around the country, unvaccinated individuals make
up the overwhelming majority (nearly 95%) of COVID-19 hospitalizations and deaths.8
18. There is some evidence that individuals with breakthrough infections from the Delta
variant can carry the virus and potentially transmit infection to others, but according to
the CDC, mitigation methods such as masking, social distancing, and proper building
ventilation are effective ways of preventing transmission. See, e.g., CDC Order at 7, 9,
13.
19. Apart from vaccinations, an additional 10 to 15% of the U.S. population has likely
recovered from a prior COVID-19 infection.9 Although prior infection confers less
protection than a vaccination, studies show that individuals who have recovered from
COVID-19 are unlikely to become infected again, and such individuals tend to develop
milder symptoms even if re-infected.10
6
CDC, COVID-19 Vaccine Breakthrough Case Investigation and Reporting (last updated
Aug. 5, 2021), https://www.cdc.gov/vaccines/covid-19/health-departments/breakthrough-
cases.html.
7
NPR, U.S. COVID Deaths Are Rising Again. Experts Call It A ‘Pandemic Of The
Unvaccinated’ (July 16, 2021), https://www.npr.org/2021/07/16/1017002907/u-s-covid-deaths-
are-rising-again-experts-call-it-a-pandemic-of-the-unvaccinated.
8
ABC News, Vast majority of ICU patients with COVID-19 are unvaccinated, ABC News
survey finds (July 29, 2021), https://abcnews.go.com/US/vast-majority-icu-patients-covid-19-
unvaccinated-abc/story?id=79128401.
9
Frederick J. Angulo, Estimation of US SARS-CoV-2 Infections, Symptomatic Infections,
Hospitalizations, and Deaths Using Seroprevalence Surveys, JAMA Network Open (Jan. 4,
2021), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7786245/.
10
See, e.g., Adnan Qureshi et al., Reinfection With Severe Acute Respiratory Syndrome
Coronavirus 2 (SARS-CoV-2) in Patients Undergoing Serial Laboratory Testing, Clinical
Infectious Diseases (Apr. 25, 2021), https://academic.oup.com/cid/advance-
article/doi/10.1093/cid/ciab345/6251701
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20. Even in the face of a more transmissible variant form of the virus, current cases detected
in the U.S. remain far below what they were at the peak of the epidemic, even while
many restrictions and regulations have been relaxed. COVID-19 vaccines have almost
certainly contributed to suppressing transmission and are the best form of protection
against illness, hospitalization and death.
21. Given that asylum-seeking families make up a tiny percentage of daily inbound
individuals, expelling asylum seekers at the southern border would do almost nothing to
reduce the number of cases or the rate of transmission in the U.S. Instead, layered
protection including masking, physical distancing, and improved ventilation, along with
vaccination and testing, should be expected to prevent additional cases among this group
and the Customs & Border Protection (CBP) personnel they interact with.
Defendants’ Expulsion Practices Are Inconsistent with Public Health.
22. A basic public health concept is that most public health actions produce a combination
positive and negative effects, which must be weighed against one another. Notably, the
CDC Order appears to be nearly devoid of any consideration of the adverse consequences
of the Title 42 policy, both to the asylum seekers and to the health of the U.S. public.
23. The CDC Declaration acknowledges that, notwithstanding COVID-19 variants, numerous
safety measures remain effective in preventing the transmission of COVID-19, including
in congregate settings. See, e.g., CDC Order at 7, 9, 13. Those measures including rapid
testing, quarantining, providing vaccines, masking, distancing, improving ventilation, and
others.
24. According to reports by advocates and the media,11 Defendants are carrying out “lateral”
expulsions, which involve flying or bussing untested migrants already in the United
States from one part of the border to another region before expelling them into Mexico.
25. We also understand from attorneys representing immigrants subject to Title 42 that some
of their clients are detained in congregate facilities for days or weeks, before they are
11
See, e.g., NBC News, Biden admin again flying migrants who cross border in one place
to another place before expelling them (June 18, 2021),
https://www.nbcnews.com/politics/immigration/biden-admin-again-flying-migrants-who-cross-
border-one-place-n1271211; Washington Post, Fewer migrant families being expelled at border
under Title 42, but critics still push for its end (June 13, 2021),
https://www.washingtonpost.com/immigration/fewer-migrant-families-being-expelled-at-border-
under-title-42-but-critics-still-push-for-its-end/2021/06/13/422c702c-c7cc-11eb-81b1-
34796c7393af_story.html; San Diego Union-Tribune, Biden expelling asylum-seeking families
with young children to Tijuana after flights from Texas (Apr. 9, 2021),
https://www.sandiegouniontribune.com/news/immigration/story/2021-04-09/biden-expelling-
families-tijuana.
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expelled from the United States, sometimes after testing negative for COVID-19 or after
completing quarantine or isolation. See, e.g., Hidalgo Decl. (ECF No. 57-8) ¶ 6; Levy
Decl. ¶ 30.
26. Such practices, if undertaken by the Department of Homeland Security, increase the risk
of transmission on both sides of the border, compared to actual public health strategies
such as testing and quarantining or offering vaccines to migrants and releasing migrants
from congregate settings.
27. Migrants in Mexico have also begun receiving COVID-19 vaccines since at least May
2021, according to multiple media reports.12 Like other vaccinated individuals, migrants
who have received a vaccine are extremely unlikely to transmit COVID-19, compared to
unvaccinated travelers who are permitted to cross the Southwest border daily.
28. There is no public health basis for expelling immigrant families, particularly those who
have been vaccinated against, tested negative for, or previously recovered from COVID-
19, while allowing hundreds of thousands of other travelers to enter the United States
daily via the Southwest border with no restrictions.
Immigrant Families Subject to Title 42 Are Not a Significant Source of COVID-19 in the
United States.
29. The CDC premised its Title 42 order on the need to prevent the “introduction” of
COVID-19 into the United States. CDC Order at 1.
30. In public health and epidemiology, “introduction” generally refers to first contact with a
disease in an area where it was previously unknown or undocumented.13
31. Since the first confirmed case of COVID-19 in January 2020, there have been nearly
36,000,000 confirmed cases of COVID-19 in the United States as of August 10, 2021.14
The actual number of infections is likely much higher.
12
Reuters, Mexico to vaccinate migrants in Baja California under new border initiative
(June 18, 2021), https://www.reuters.com/world/americas/mexico-vaccinate-migrants-baja-
california-under-new-border-initiative-2021-06-19/; Reuters, U.S. bound-migrants vaccinated for
COVID-19 in Mexican border city (May 6, 2021), https://www.reuters.com/world/americas/us-
bound-migrants-vaccinated-covid-19-mexican-border-city-2021-05-06/.
13
KE Nelson and CM Wilson [eds] (2007), Infectious Disease Epidemiology Theory and
Practice, 2nd Edition. Sudbury, MA: Jones and Bartlett.
14
CDC, United States COVID-19 Cases, Deaths, and Laboratory Testing (NAATs) by State,
Territory, and Jurisdiction (last updated Aug. 10, 2021), https://covid.cdc.gov/covid-data-
tracker/#cases.
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32. According to the CDC, there were over 91,000 new confirmed COVID-19 cases reported
on July 31, 2021, more than 80% of which were caused by the Delta variant.15 There is
no evidence that the Delta variant originated in a migrant crossing the Southwest border,
and, at this point, asylum-seeking families cannot meaningfully introduce the variant into
the United States, where it is already the dominant strain.
33. According to public data from CBP, the agency has expelled an average of 8,600 family
unit noncitizens per month in the last two months, or approximately 285 people per day.16
34. Even if 100% of those approximately 285 people per day were to test positive for
COVID-19 (which they will not), they would still represent only a negligible addition to
the more than 70,000 new cases that have been reported each day in the United States on
average over the most recent week.17
35. Given that noncitizen families represent a very small fraction of the hundreds of
thousands of inbound people allowed to cross the Southwest border each day (without
COVID-19 testing or vaccination requirements),18 even with entry to congregate
conditions, asylum seekers cannot plausibly constitute a meaningful additional COVID-
19 risk to the U.S. public. That minimal risk is further diminished by a majority of
Americans and a large majority of vulnerable age groups receiving COVID-19
vaccinations.
36. The minimal risk that those few asylum-seekers could infect others could be further
mitigated by a testing and quarantine process or via widely available vaccinations.
According to Defendants, DHS has already developed, in coordination with state, local,
and NGO partners, capacity to test, quarantine, or isolate noncitizen families. Shahoulian
Decl. ¶¶ 8–9. Apart from that capacity, noncitizen families can be directed to self-
quarantine with the help of their family, friends, or other sponsors in the United States. A
recent study found that “91.9% [of asylum seekers] have family or close friends who live
in the U.S.”19
15
CDC, Trends in Number of COVID-19 Cases and Deaths in the US Reported to CDC, by
State/Territory (last visited Aug. 10, 2021), https://covid.cdc.gov/covid-data-
tracker/#trends_dailytrendscases. CDC, Variant Proportions (last visited Aug. 10, 2021),
https://covid.cdc.gov/covid-data-tracker/#variant-proportions.
16
CBP, Southwest Land Border Encounters,
https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters.
17
CDC, Trends in Number of COVID-19 Cases and Deaths in the US Reported to CDC
(last visited Aug. 10, 2021), https://covid.cdc.gov/covid-data-tracker/#trends_dailytrendscases.
18
Department of Transportation, Border Crossing Entry Data (last visited Aug. 9, 2021),
https://explore.dot.gov/views/BorderCrossingData/Annual?:isGuestRedirectFromVizportal=y&:
embed=y.
19
U.S. Immigration Policy Center at UC San Diego, Seeking Asylum: Part 2 13(Oct. 29,
2019), https://usipc.ucsd.edu/publications/usipc-seeking-asylum-part-2-
final.pdf?fbclid=IwAR07M_jP1Wy8KIn85d0jnw0Kobiz-
MR7XeAIT77c9afuRInkd7sHL21FE1Q.
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37. Additional quarantine or isolation capacity can be acquired by expanding the use of hotel
or by utilizing temporary, mobile housing units that can be rapidly deployed by HHS and
CDC in coordination with local partners.
Defendants Make Misleading Claims About the Infection Risks That Agency Personnel
Face.
38. Defendants’ suggestion that CBP employees are at elevated risk for COVID-19 due to
contact with immigrants is unfounded.
39. If vaccinated with one of the widely available vaccines, CBP employees would be highly
unlikely to contract COVID-19 and develop symptomatic or serious illness.
40. Defendants assert that the rate of infection has been increasing among CBP officers,
despite significant numbers of fully vaccinated employees since January 2021. See ECF
No.113-1, ¶ 13. However, Defendants do not indicate whether any of the recently
infected CBP officers had been vaccinated, or whether any breakthrough infections had
led to serious disease. Moreover, Defendants’ infection figures appear to include all CBP
employees, including those who are not located at the Southwest border (or even in the
United States).20
41. Defendants also do not disclose how many CBP employees have actually been
vaccinated. We understand that the federal government has only recently required all
federal employees and contractors to either attest to vaccination, or otherwise comply
with testing and masking requirements.21 As more CBP employees get vaccinated or
begin to follow more rigorous testing and masking protocols, infection and
hospitalization rates should correspondingly decrease.
42. Because CBP employees are far more likely and able to be tested than the average
American citizen, the fact that 12.36% of CBP employees may have tested positive for
COVID-19 (as of February 15, 2021) compared to 8.16% nationally is not probative. See
ECF No. 76-2, ¶ 18. Indeed, a nationwide sero-prevalence survey conducted prior to the
availability of vaccines, suggested that 14.3% of the United States population had been
infected as of mid-November 2020, more than twice the number of confirmed cases.22
20
CBP, Agency COVID-19 Information (last updated Aug. 6, 2021),
https://www.cbp.gov/newsroom/coronavirus.
21
Safer Federal Workforce Task Force, COVID-19 Workplace Safety: Agency Model Safety
Principles (July 29, 2021),
https://www.saferfederalworkforce.gov/downloads/revised%20COVID19_Safe%20Federal%20
Workplace_Agency%20Model%20Safety%20Principles_20210728.pdf
22
Frederick J. Angulo, Estimation of US SARS-CoV-2 Infections, Symptomatic Infections,
Hospitalizations, and Deaths Using Seroprevalence Surveys, JAMA Network Open (Jan. 4,
2021), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7786245/.
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43. In fact, based on CBP’s latest public data, CBP employees have likely had a lower
incidence of confirmed COVID-19 cases compared to the overall adult population in the
United States. Between February 15 and August 6, 2021, 1,905 CBP officers tested
positive for COVID-19, out of 63,457 employees.23 Accordingly, approximately 3.00%
of CBP personnel contracted COVID-19 during that time. During that same period,
3.01% of adults in the United States tested positive for COVID-19.24 Because CBP
officers are tested more frequently than the average adult in the United States, the fact
that they have almost identical rates of confirmed cases suggests that CBP officers are
less likely to be infected with COVID-19 than the rest of the adult population in the
country.
44. The fact that CBP officers likely have a lower rate of infection compared to the American
public as a whole suggests that CBP is able to process immigrants safely, given
vaccinations and other mitigation measures, despite having to work in congregate settings
at times.
45. Notably, the CDC Order cites no evidence for its contention that the Title 42 policy has
“helped lessen the introduction, transmission, and spread of COVID-19 among border
facilities and into the United States while also decreasing the risk of exposure to COVID-
19 for DHS personnel and others in the facilities.” CDC Order at 15-16. Given the likely
lower incidence in CBP personnel, including during the asserted period of increased
facility crowding in 2021, this statement is likely incorrect.
Defendants Make Misleading Claims About the Risk of Infection Posed by Travelers from
Mexico.
46. Defendants note that Mexico has “had the third highest total number of deaths from
COVID-19 in the world,” Opp. at 4, which is no longer the case. Moreover, the statement
omits noting that the United States has reported the most COVID-19 deaths in the world
cumulatively and that the COVID-19 death rate on a per capita basis is nearly identical in
the US and Mexico.25
47. In any event, Defendants’ reliance on total deaths as a measure of infection risk is
misguided: National death counts vary depending on factors such as the quality of
23
See Miller Decl. (ECF No. 76-2) ¶ 18; CBP, Agency COVID-19 Information (last updated
Aug. 6, 2021), https://www.cbp.gov/newsroom/coronavirus.
24
CDC, Trends in Number of COVID-19 Cases and Deaths in the US Reported to CDC, by
State/Territory (last visited Aug. 10, 2021), https://covid.cdc.gov/covid-data-
tracker/#trends_dailytrendscases.
25
World Health Organization, WHO Coronavirus Disease (COVID-19) Dashboard (last
updated Aug. 10, 2021), https://covid19.who.int/table; Johns Hopkins University of Medicine
Coronavirus Resource Center, Mortality Analysis (last updated Aug. 10, 2021),
https://coronavirus.jhu.edu/data/mortality.
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medical care once infected and differences in population and demographics, none of
which reveals the likelihood that a traveler from Mexico is carrying the virus that causes
COVID-19. Not only is quality healthcare less accessible in Mexico, the Mexican
population also suffers from high rates of obesity and other chronic conditions that place
them at particular risk for severe illness and death from COVID-19.26
48. In the latest CDC Order, the only data that the agency cited regarding COVID-19
prevalence in Mexico show that the United States is experiencing more than twice as
many cases per capita compared to Mexico. CDC Order at 4. The Order also cites data
indicating that the recent rate of increase of confirmed COVID-19 cases in the United
States is three times higher than Mexico’s. Id.
49. While Defendants have previously asserted that Mexico is underreporting its COVID-19
cases and deaths, sero-prevalence studies, as explained in our initial declaration, confirm
that Mexico’s lower counts cannot be fully explained by differences in reporting. See
ECF No. 57-6, ¶ 24.
50. In short, the CDC has not provided any evidence or reason to believe that migrants
arriving from Mexico are more likely to have COVID-19 than the average person in the
United States.
26
Diego Rolando Hernández-Galdamez, et al., Increased Risk of Hospitalization and Death
in Patients with COVID-19 and Pre-existing Noncommunicable Diseases and Modifiable Risk
Factors in Mexico, Archives of Medical Research (July 22, 2020),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7375298/.
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I, Sharmila Shetty, declare under penalty of perjury of the laws of the State of New York and the
United States of America that the foregoing is true and correct to the best of my knowledge and
belief.
Executed on August 10, 2021 in Massapequa Park, New York.
__________________________________
SHARMILA SHETTY
I, Stephen Patrick Kachur, declare under penalty of perjury of the laws of the State of New York
and the United States of America that the foregoing is true and correct to the best of my
knowledge and belief.
Executed on August 10, 2021 in New York, New York.
__________________________________
STEPHEN PATRICK KACHUR
I, Leslie Roberts, declare under penalty of perjury of the laws of the United States of America
that the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 11, 2021 in Bocaranga, Central African Republic.
__________________________________
LESLIE ROBERTS
I, Bradley A. Woodruff, declare under penalty of perjury of the laws of the United States of
America that the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 11, 2021 in Victoria, British Columbia, Canada.
__________________________________
BRADLEY A. WOODRUFF
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DECLARATION OF 32 MEDICAL AND PUBLIC HEALTH EXPERTS
The undersigned hereby declare:
1. We make this declaration based on our own personal knowledge and if called to testify
could and would do so competently and truthfully to these matters.
2. We have carefully reviewed the latest Title 42 order issued by the Centers for Disease
Control & Prevention (CDC) and conclude that it still does not provide adequate public
health justifications for expelling asylum-seeking families at the border. See CDC, Order
Suspending the Right to Introduce Certain Persons from Countries Where a
Quarantinable Communicable Disease Exists (Aug. 2, 2021) (hereinafter “CDC Order”),
https://www.cdc.gov/coronavirus/2019-ncov/downloads/CDC-Order-Suspending-Right-
to-Introduce-_Final_8-2-21.pdf.
3. Based on our professional opinion as epidemiologists, medical doctors, public health
experts, and former officials from the CDC, we believe that:
◼ Families seeking asylum at the southwest border can be admitted, processed, and
transported in a manner that safeguards public health, notwithstanding the COVID-19
pandemic and the currently circulating variants of the COVID-19 virus;
◼ Migrants are not responsible for increases in COVID-19 infections, nor did they
introduce the current variants into the United States;
◼ Processing of asylum seekers, with mitigation strategies, presents no greater risk than
that posed by countless activities currently allowed by the CDC (such as indoor
sporting events, dining, and concerts); and
◼ The CDC Order does not conclude that the processing of asylum seekers cannot be
done safely. Rather, the CDC has concluded that the Department of Homeland
Security (DHS) has not taken all of the recommended mitigation steps, despite having
had more than a year to do so.
NANCY GIMENA HUISHA-HUISHA, et al.,
Plaintiffs,
v.
ALEJANDRO MAYORKAS, Secretary of Homeland
Security, in his official capacity, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
No. 1:21-CV-00100-EGS
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4. In short, the CDC Order is an indictment of the DHS’s yearlong failure to adopt
reasonable mitigation steps in order to safely process asylum-seeking families, and not a
conclusion by CDC that migrants present an unacceptable public health risk. The CDC
Order also makes clear that where the federal government has wanted to allocate
resources toward mitigation protocols for migrants entering the United States, it can do
so, as it did when it exempted unaccompanied minors from Title 42.
5. In its order, the CDC “recognizes [that] the availability of testing, vaccines, and other
mitigation protocols can minimize risk” of COVID-19 transmission during border
processing. CDC Order at 3. Thus, according to the CDC, the primary reason that
asylum-seeking families are still being subjected to Title 42 is because of DHS’s failure
to expand available mitigation measures:
CDC considers these efforts [to expand testing, consequence management,
and vaccination programs] to be a critical risk reduction measure and
encourages DHS to evaluate the potential expansion of such COVID-19
mitigation programs for [family units] such that they may be excepted
from this Order in the future.
Id. at 22. The CDC also stated that it “encourages DHS to develop such programs
as quickly as practicable.” Id.
6. The CDC further recognized that the federal government has successfully implemented
those mitigation steps in order to process unaccompanied children without posing “a
significant level of risk for COVID-19 spread into the community”—DHS simply has not
done the same for families. See id. at 17.
7. To date, Title 42 has not been lifted for any subset of asylum-seeking families, even
though the CDC has concluded that “[i]n light of available mitigation measures,” “the
gradual resumption of normal border operations under Title 8 is feasible” with “careful
planning.” Id. at 18.
8. Effective mitigation measures have enabled this country to re-open, return to in-person
schooling, travel, religious practice, indoor sporting events and other regular activities.
The risks from allowing migrants fleeing persecution and danger into the United States
are minimal considering the number of mitigation tools available, and certainly not
greater than risks associated with many activities that the CDC currently sanctions.
9. By utilizing highly effective vaccines and following the other practical mitigation
recommendations (set forth below), Defendants can ensure the health of government
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employees, noncitizens, and communities in the United States. These mitigation
concepts are not novel in the context of border processing.1
SARS-CoV-2 and Its Variants Do Not Provide a Public Health Basis to Exclude Asylum-
Seeking Families From the United States.
10. The CDC has recognized that mitigation strategies continue to be effective against all
known variants of the COVID-19 virus, including the Delta variant, the dominant strain
currently circulating in the United States. See, e.g., CDC Order at 7.
11. Title 42 expulsions at the southwest border cannot prevent the introduction of the Delta
variant into the country, because the variant is already widespread in the United States.2
12. There is no evidence that any of the four variants of concern to the CDC originated in a
person crossing the southwest border.3
Minimizing Transmission Risk During Border Processing.
13. A package of risk mitigation strategies is effective even if no individual strategy
completely blocks transmission on its own. By combining multiple strategies, including
vaccinations, testing, masking, ventilation, and sanitizing, Customs and Border Protection
(CBP) can safely process asylum-seeking families while minimizing transmission of
COVID-19.
14. On July 29, 2021, President Biden announced a requirement that millions of federal
employees and contractors be vaccinated or be subjected to rigorous safety protocols.4
15. Ensuring that only fully-vaccinated government agents are placed in migrant-facing roles
would largely eliminate the risks of serious illness, hospitalization, and death among
government personnel from COVID-19; it would also significantly reduce transmission
of SARS-CoV-2 between government personnel and migrants.
16. Offering COVID-19 vaccinations to migrants would further dampen cycles of
transmission. All migrants should be offered a vaccine when they come into CBP
1
Columbia Mailman School of Public Health, Public Health Recommendations for Processing Families,
Children and Adults Seeking Asylum or Other Protection at the Border (Dec. 12, 2020),
https://www.publichealth.columbia.edu/research/program-forced-migration-and-health/public-health-
recommendations-processing-families-children-and-adults-seeking-asylum-or-other.
2
See CDC, Variant Proportions (last updated Aug. 3, 2021), https://covid.cdc.gov/covid-data-
tracker/#variant-proportions.
3
See CDC, SARS-CoV-2 Variant Classifications and Definitions (last updated Aug. 3, 2021),
https://www.cdc.gov/coronavirus/2019-ncov/variants/variant-info.html.
4
The White House, Fact Sheet: President Biden to Announce New Actions to Get More Americans
Vaccinated and Slow the Spread of the Delta Variant (July 29, 2021), https://www.whitehouse.gov/briefing-
room/statements-releases/2021/07/29/fact-sheet-president-biden-to-announce-new-actions-to-get-more-americans-
vaccinated-and-slow-the-spread-of-the-delta-variant/.
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custody, or shortly after leaving CBP custody, regardless of whether or not they are
ultimately allowed to remain in the country.
17. The U.S. government has adequate vaccine supplies to take this step.5 DHS should also
offer vaccine information in multiple languages to increase vaccine uptake.
18. Vaccination programs for migrants arriving at the southwest border are reportedly being
considered by DHS and CBP and should be implemented immediately, as recommended
by the CDC.6 In the past, CBP has reportedly resisted the CDC’s recommendation to
vaccinate migrants, acting contrary to public health.7
19. In addition to vaccinations, transmission could be further reduced by maximizing outdoor
processing, such as by repurposing parking lots and other well-ventilated spaces. The
CDC Order noted that processing for Title 42 expulsions generally takes place outdoors.
CDC Order at 15. However, if CBP were to similarly shift processing for those allowed
to enter the country to outdoor settings or semi-outdoor spaces with open-sided
structures, transmission risk would be substantially reduced.
20. Even if congregate processing indoors were necessary, there are numerous safeguards
that minimize the risk of transmission in such settings.
21. For instance, as one layer of protection, indoor facilities can utilize air filtration or other
means of improving ventilation, such as reducing recirculation of air and opening
windows.
22. When families are indoors, transmission can be mitigated through masking, social
distancing, and hand-sanitizing, all of which remain effective against all known variants
of the COVID-19 virus. All building occupants could be instructed to wear masks in the
correct manner and to use surgical masks or respirators with better filtration instead of
cloth masks. See CDC, Improve the Fit and Filtration of Your Mask to Reduce the
Spread of COVID-19 (last updated Apr. 6, 2021), https://www.cdc.gov/coronavirus/2019-
ncov/prevent-getting-sick/mask-fit-and-filtration.html.
23. Mobile testing units deploying rapid antigen tests could be used to test individuals for
COVID-19 before they enter an indoor, congregate setting. According to the CDC, in
congregate settings, “rapid testing can be implemented to identify infected persons so
5
See, e.g., The White House, Fact Sheet: President Biden Announces Major Milestone in Administration’s
Global Vaccination Efforts: More Than 100 Million U.S. COVID-19 Vaccine Doses Donated and Shipped Abroad
(Aug. 3, 2021) (stating that United States government will deliver “hundreds of millions of more doses” to other
countries “in the coming weeks”), https://www.whitehouse.gov/briefing-room/statements-releases/2021/08/03/fact-
sheet-president-biden-announces-major-milestone-in-administrations-global-vaccination-efforts-more-than-100-
million-u-s-covid-19-vaccine-doses-donated-and-shipped-abroad.
6
See The Washington Post, Biden administration preparing to offer vaccines to migrants along Mexico
border (Aug. 3, 2021), https://www.washingtonpost.com/national/biden-vaccines-migrants-
border/2021/08/03/afaff516-f471-11eb-83e7-06a8a299c310_story.html.
7
CNN, CDC urged US Customs and Border Protection to vaccinate migrants, but they rejected the idea
(Nov. 26, 2019), https://www.cnn.com/2019/11/26/health/cdc-vaccinations-migrants-border-patrol/index.html.
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they can be isolated until they no longer pose a risk of spreading infections.” CDC Order
at 9. The rapid testing could be part of the COVID-19 medical screenings and
temperature checks already conducted by CBP prior to taking noncitizens into custody.
Id. at 13.
24. Any individual who tests positive for COVID-19 from the antigen test should be
immediately referred for medical care and isolation while they await a PCR test to
confirm the COVID-19 diagnosis. CBP can work with local health authorities, shelters,
and humanitarian assistance organizations to find additional facilities, like unused
dormitory and hotel facilities, to allow such individuals to isolate and undergo additional
testing.
25. According to the CDC, CBP already has testing, quarantine, and isolation systems set up
for most family units, who are not typically detained. See id. at 14.
26. According to the CDC, CBP has already been implementing several other mitigation
strategies at its facilities. Id. at 13 (“CBP has implemented a variety of mitigation efforts
to prevent the spread of COVID-19 in [CBP] facilities. CBP has invested in engineering
upgrades, such as installing plexiglass dividers in facilities where physical distancing is
not possible and enhancing ventilation systems. All CBP facilities adhere to CDC
guidance for cleaning and disinfection. Surgical masks are provided to all persons in
custody and are changed at least daily and if or when they become wet or soiled.
Personal protective equipment (PPE) and guidance are regularly provided to CBP
personnel. Recognizing the value of vaccination, CBP is encouraging vaccination among
its workforce.”).
27. We are not aware of any reason that DHS could not take additional mitigation steps
beyond those it has already taken, if it were willing to allocate sufficient resources. Nor
does the CDC Order explain why DHS could not take such additional mitigation steps.
28. The above precautionary measures, combined with testing (including rapid testing),
quarantine, isolation, and vaccinations, provide multiple layers of protection against
transmission, minimize disease transmission, and enable asylum-seeking families to be
processed without posing a significant public health risk.
Minimizing Transmission Risk During Transport.
29. Mitigation strategies are effective in preventing transmission of COVID-19 when
asylum-seeking families have to be transported by CBP prior to release.
30. Ensuring that all migrant-facing CBP personnel are vaccinated and masked, and that all
noncitizens are tested prior to boarding, cohorted by COVID-19 status and known
exposure, and masked will significantly reduce transmission risk. These steps for
minimizing transmission during air and ground transportation are already outlined in
CDC guidance. See CDC, Interim Guidance for Transporting or Arranging
Transportation by Air into, from, or within the United States of People with COVID-19 or
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COVID-19 Exposure (Jan. 19, 2021), https://www.cdc.gov/quarantine/interim-guidance-
transporting.html.
31. Transmission risk can be further mitigated by using larger capacity vehicles, improving
ventilation by opening windows, minimizing recirculation of air by the heating/cooling
system, seating individuals in a socially distanced manner, and sanitizing vehicles
between uses.
32. In the event that a longer trip is necessary, vehicle occupancy can be reduced to mitigate
transmission risk.
Public Health Alternatives to Expulsion.
33. Expulsions magnify the risks of COVID-19 transmission to CBP personnel and border
communities.
34. Title 42 expulsions encourage repeat interactions between noncitizens and CBP.
According to CBP, “[t]he large number of expulsions during the pandemic has
contributed to a larger-than-usual number of noncitizens making multiple border crossing
attempts.” CBP, CBP Announces May 2021 Operational Update (June 9, 2021),
https://www.cbp.gov/newsroom/national-media-release/cbp-announces-may-2021-
operational-update. Noncitizens subject to expulsion are generally expelled across the
border into Mexico via the nearest port of entry. See CDC Order at 14.
35. According to CBP statistics, approximately 35-40% of noncitizens encountered at the
southwest border are repeat encounters. See CBP, CBP Announces June 2021
Operational Update (July 16, 2019), https://www.cbp.gov/newsroom/national-media-
release/cbp-announces-june-2021-operational-update. CBP, CBP Announces May 2021
Operational Update (June 9, 2021), https://www.cbp.gov/newsroom/national-media-
release/cbp-announces-may-2021-operational-update.
36. Rather than increasing transmission opportunities by multiplying the number of direct
interactions, DHS and CBP should implement proven public health strategies, such as
testing and quarantine and vaccination programs for migrants.
37. According to the CDC, a protocol for testing, quarantine, and vaccination (when age-
appropriate) has enabled unaccompanied children to be placed in congregate shelters or
released to sponsors (who can assist with compliance with medical guidance) “without
posing a significant public health risk.” CDC Order at 17.
38. The same can be done for asylum-seeking families, the overwhelming number of whom
have sponsors, family, or friends in the United States who can assist with compliance
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7
with medical and public health direction. A recent study found that “91.9% [of asylum
seekers] have family or close friends who live in the U.S.”8
39. According to the CDC, CBP has already developed partnerships “with state and local
agencies and non-governmental organizations to facilitate COVID-19 testing of
[families] upon release from CBP custody.” CDC Order at 14. Highly effective vaccines
are already available upon demand in the United States, free of charge, to all individuals
12 or older, in local pharmacies and other accessible locations.
40. To the extent that such resources for testing and quarantine are limited, DHS and HHS
should procure additional testing and quarantine capacity or provide funding to local and
state groups. The use of quarantine hotels or motels could be quickly scaled up or down
as needed.
41. Asylum-seeking families in the United States can also be directed to shelter in place at
their ultimate destinations.
42. Additionally, HHS and CDC should assist with expanding quarantine and isolation
capacity through the use of temporary or mobile housing units, in coordination with local
health authorities.
8
U.S. Immigration Policy Center at UC San Diego, Seeking Asylum: Part 2 13(Oct. 29, 2019),
https://usipc.ucsd.edu/publications/usipc-seeking-asylum-part-2-
final.pdf?fbclid=IwAR07M_jP1Wy8KIn85d0jnw0Kobiz-MR7XeAIT77c9afuRInkd7sHL21FE1Q.
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8
I, Joseph J. Amon, declare under penalty of perjury of the laws of the United States of America
that the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 9, 2021 in Princeton, New Jersey.
__________________________________
JOSEPH J. AMON, PhD, MSPH
Director of Global Health
Clinical Professor, Community Health and Prevention
Dornsife School of Public Health, Drexel University
Former Epidemiologist, Epidemic Intelligence Service, Centers for Disease Control and
Prevention
I, Stefano M. Bertozzi, declare under penalty of perjury of the laws of the United States of
America that the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 8, 2021 in Berkeley, California.
__________________________________
STEFANO M. BERTOZZI, MD, PhD
Dean Emeritus and Professor, Health Policy & Management
UC Berkeley School of Public Health
I, Jacqueline Bhabha, declare under penalty of perjury of the laws of the United States of
America that the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 11, 2021 in Cambridge, Massachusetts.
__________________________________
JACQUELINE BHABHA
Professor of the Practice of Health and Human Rights, Harvard T.H. Chan School of Public
Health
Director of Research, François-Xavier Bagnoud Center for Health and Human Rights
Harvard University
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I, Ietza Bojorquez, declare under penalty of perjury of the laws of the United States of America
that the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 8, 2021 in Tijuana, Mexico.
__________________________________
IETZA BOJORQUEZ, MD, PhD
Department of Population Studies, El Colegio de la Frontera Norte
Tijuana, BC, Mexico
I, Joanne Csete, declare under penalty of perjury of the laws of the United States of America that
the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 10, 2021 in New York, New York.
JOANNE CSETE, PhD, MPH
Associate Professor
Columbia University Mailman School of Public Health
I, Charles Nicholas Cuneo, declare under penalty of perjury of the laws of the United States of
America that the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 9, 2021 in Baltimore, Maryland.
__________________________________
CHARLES NICHOLAS CUNEO, MD, MPH
Assistant Professor of Medicine and Pediatrics
Johns Hopkins University School of Medicine (Division of Hospital Medicine, Pediatric Hospital
Medicine Division)
Johns Hopkins Bloomberg School of Public Health (Center for Public Health and Human Rights
– Migrant Health & Human Rights Program, Center for Humanitarian Health)
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I, Ayman El-Mohandes, declare under penalty of perjury of the laws of the United States of
America that the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 10, 2021 in New York, New York.
__________________________________
AYMAN EL-MOHANDES, MBBCh, MD, MPH
Dean
CUNY Graduate School of Public Health & Health Policy
I, Eric Friedman, declare under penalty of perjury of the laws of the United States of America
that the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 8, 2021 in Washington, DC.
__________________________________
ERIC A. FRIEDMAN
Global Health Justice Scholar
O’Neill Institute for National and Global Health Law
Georgetown University Law Center
I, Gregg Gonsalves, declare under penalty of perjury of the laws of the United States of America
that the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 10, 2021 in New Haven, Connecticut.
__________________________________
GREGG GONSALVES, PhD
Associate Professor of Epidemiology
Yale School of Public Health
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I, Lawrence Gostin, declare under penalty of perjury of the laws of the United States of America
that the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 9, 2021 in Washington, DC.
__________________________________
LAWURENCE GOSTIN
Linda D. & Timothy J. O’Neill Professor of Global Health Law
Faculty Director, O’Neill Institute for National & Global Health Law
Professor of Medicine, Georgetown University
Member of the National Academy of Medicine
I, M. Claire Greene, declare under penalty of perjury of the laws of the United States of America
that the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 9, 2021 in New York, New York.
__________________________________
M. CLAIRE GREENE
Postdoctoral Research Scientist
Columbia University Mailman School of Public Health
I, Michele Heisler, declare under penalty of perjury of the laws of the United States of America
that the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 10, 2021 in Ann Arbor, Michigan.
__________________________________
MICHELE HEISLER, MD, MPA
Professor of Internal Medicine and Public Health
Co-Director, Michigan Center for Diabetes Translational Research (MCDTR—NIDDK
P30DK092926)
University of Michigan, Ann Arbor, MI
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I, Monik C. Jiménez, declare under penalty of perjury of the laws of the United States of
America that the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 9, 2021 in Brimfield, Massachusetts.
__________________________________
MONIK C. JIMÉNEZ, ScD, SM, FAHA
Assistant Professor
Brigham and Women’s Hospital/Harvard Medical School
I, Stephen Patrick Kachur, declare under penalty of perjury of the laws of the United States of
America that the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 10, 2021 in New York, New York.
_________________________________
STEPHEN PATRICK KACHUR, MD, MPH
Professor of Population and Family Health
Columbia University Mailman School of Public Health
Former Branch Chief, Malaria Branch, Centers for Disease Control and Prevention
I, Ameeta Kalokhe, declare under penalty of perjury of the laws of the United States of America
that the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 10, 2021 in Atlanta, Georgia.
__________________________________
AMEETA KALOKHE, MD MSc
Associate Professor
Emory University School of Medicine, Division of Infectious Diseases
Emory Rollins School of Public Health, Department of Global Health
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I, Michel Khoury, declare under penalty of perjury of the laws of the United States of America
that the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 10, 2021 in Atlanta, Georgia.
__________________________________
MICHEL KHOURY, MD
Assistant Professor, Department of Neurology, Emory University
Co-Director, Georgia Human Rights Clinic
I, William D. Lopez, declare under penalty of perjury of the laws of the United States of America
that the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 10, 2021 in Ann Arbor, Michigan.
__________________________________
WILLIAM D. LOPEZ, PhD, MPH
Clinical Assistant Professor
University of Michigan School of Public Health
I, Terry McGovern, declare under penalty of perjury of the laws of the United States of America
that the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 10, 2021 in New York, New York.
_________________________________
TERRY MCGOVERN, JD
Professor and Chair
Heilbrunn Department of Population and Family Health, Mailman School of Public Health,
Columbia University
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I, Rachel T. Moresky, declare under penalty of perjury of the laws of the United States of
America that the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 10, 2021 in New York, New York.
__________________________________
RACHEL T. MORESKY, MD, MPH
Director, Columbia University sidHARTe - Strengthening Emergency Systems Program &
Global Emergency Medicine Fellowship
Associate Professor, Population and Family Health & Emergency Medicine Departments,
Columbia University Irving Medical Center
I, Katherine R. Peeler, declare under penalty of perjury of the laws of the United States of
America that the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 9, 2021 in Boston, Massachusetts.
__________________
KATHERINE R. PEELER, MD, MA
Medical Expert, Physicians for Human Rights
Instructor of Pediatrics, Global Health and Social Medicine, and Bioethics, Harvard Medical
School
Medical Director, Harvard Students Human Rights Collaborative Asylum Clinic
I, Benjamin Pinsky, declare under penalty of perjury of the laws of the United States of America
that the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 9, 2021 in San Francisco, California.
BENJAMIN PINSKY, MD, PhD
Associate Director of Clinical Pathology for COVID-19 Testing
Director, Clinical Virology Laboratory
Stanford Health Care and Stanford Children’s Health
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I, Leslie (“Les”) Roberts, declare under penalty of perjury of the laws of the United States of
America that the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 11, 2021 in Bocaranga, Central African Republic.
__________________________________
LESLIE ROBERTS, MPH, PhD
Professor of Population and Family Health
Columbia University Mailman School of Public Health
Former Epidemic Intelligence Service Officer and Senior Assistant Scientist, Centers for Disease
Control and Prevention
I, Goleen Samari, declare under penalty of perjury of the laws of the United States of America
that the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 10, 2021 in New York, New York.
__________________________________
GOLEEN SAMARI, PhD, MPH, MA
Assistant Professor
Program on Forced Migration and Health
Columbia Mailman School of Public Health
I, John Santelli, declare under penalty of perjury of the laws of the United States of America that
the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 10, 2021 in New York, New York.
__________________________________
JOHN SANTELLI, MD, MPH
Professor, Population and Family Health and Pediatrics
Mailman School of Public Health
Vagelos College of Physicians and Surgeons
Columbia University
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I, Anandi Sheth, declare under penalty of perjury of the laws of the United States of America that
the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 10, 2021 in Atlanta, Georgia.
__________________________________
ANANDI SHETH, MD, MSc
Associate Professor
Emory University School of Medicine
I, Sharmila Shetty, declare under penalty of perjury of the laws of the United States of America
that the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 10, 2021 in Massapequa Park, New York.
__________________________________
SHARMILA SHETTY, MD
Vaccines Medical Advisor,
Médecins Sans Frontières – Access Campaign
Former Epidemiology Lead, Global Rapid Response Team, Centers for Disease Control and
Prevention
I, Paul B. Spiegel, declare under penalty of perjury of the laws of the United States of America
that the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 10, 2021 in Baltimore, Maryland.
__________________________________
PAUL B. SPIEGEL, MD, MPH
Professor of Practice and Director
Johns Hopkins Bloomberg School of Public Health, Center for Humanitarian Health
Former Medical Epidemiologist, International Emergency and Refugee Health Branch,
Centers for Disease Control and Prevention
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I, Ronald Waldman, declare under penalty of perjury of the laws of the United States of
America that the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 11, 2021 in Washington, DC.
__________________________________
RONALD WALDMAN, MD, MPH
Professor Emeritus of Public Health
Milken Institute School of Public Health
The George Washington University
Former Director, Technical Support Division, International Health Program Office, Centers for
Disease Control and Prevention
I, Bradley A. Woodruff, declare under penalty of perjury of the laws of the United States of
America that the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 11, 2021 in Victoria, British Columbia, Canada.
__________________________________
BRADLEY A. WOODRUFF, MD, MPH
Consultant, UNICEF, WHO, WFP
Former Senior Medical Epidemiologist and Acting Chief of International Emergency and
Refugee Health Branch, Centers for Disease Control and Prevention
I, Monette Zard, declare under penalty of perjury of the laws of the United States of America that
the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 10, 2021 in New York, New York.
__________________________________
MONETTE ZARD, MA
Allan Rosenfield Associate Professor of Forced Migration and Health
Director of the Forced Migration and Health Program
Heilbrunn Department of Population and Family Health
Columbia University Mailman School of Public Health
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I, Amy Zeidan, declare under penalty of perjury of the laws of the United States of America that
the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 10, 2021 in Atlanta, Georgia.
__________________________________
AMY ZEIDAN, MD
Assistant Professor of Emergency Medicine
Co-Director, Georgia Human Rights Clinic
Emory University School of Medicine
I, Jon Zelner, declare under penalty of perjury of the laws of the United States of America that
the foregoing is true and correct to the best of my knowledge and belief.
Executed on August 9, 2021 in Ann Arbor, Michigan.
__________________________________
JON ZELNER, PhD
Assistant Professor
Dept. of Epidemiology
Center for Social Epidemiology and Population Health (CSEPH)
University of Michigan School of Public Health
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DECLARATION OF LINDA RIVAS
I, Linda Rivas, pursuant to 28 U.S.C. § 1746, declare as follows:
Summary
1. Through my work as an immigration attorney and Executive Director of a non-profit I
have seen the grave harm caused to families and individuals expelled under Title 42.
Families experience extortion, kidnapping, rape, and other violence after being expelled.
Despite those harms, the government has failed to utilize the El Paso shelter system,
complete with COVID-19 protocols, and instead continues to expel families directly into
harms way. Asylum seekers should be processed into the United States, and we have the
capacity to receive them, consistent with public health protocols.
Qualifications
2. I am the Executive Director of the Las Americas Immigrant Advocacy Center (“Las
Americas”) in El Paso, Texas.
3. Las Americas is a 501(c)(3) nonprofit organization based in El Paso, Texas providing
free and low-cost legal services to immigrants and refugees in West Texas and New
Mexico. We have served over 40,000 people from over 77 countries since 1987. We
provide legal representation through attorneys and Department of Justice accredited
representatives.
4. This year alone, Las Americas has assisted over 1,000 people, including families, seeking
asylum that have been impacted by Title 42 processing.
5. I make this declaration based on my personal experience at Las Americas working with
noncitizen children and families subject to the Title 42 process since the process began in
March 2020.
6. I have been the Executive Director of Las Americas since 2016. I began working at Las
Americas as a managing attorney in 2014. I continue, as Executive Director, to directly
represent many of our clients. Prior to joining Las Americas, I was the West Texas
Violence Against Women’s Act supervisor at the Texas Civil Rights Project for almost
two years. I graduated law school 2011 from Loyola College of Law and have been a
member of the Texas bar since 2013.
Harm from Title 42
7. When the Title 42 process first began in March 2020, we started receiving desperate
phone calls from families and individual impacted by the expulsions. At the time, given
the complete denial of access to the asylum system, we did not have any viable option to
assist those families or individuals given the absolute denial of access to asylum under
the Title 42 process. Despite no meaningful avenue to advocate for those impacted, we
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continued to put together robust humanitarian parole packets for people forced to remain
in Mexico in an attempt to get particularly vulnerable families and individuals processed
into the United States. Only one was granted after the New York Times reported on the
case. The rest were denied.
8. Beginning in February 2021, the Las Americas staff and I started going into Ciudad
Juarez to interview people expelled under the Title 42 process. What I heard and saw was
shocking. I have witnessed many expulsions occur on the international bridges. I have
seen families with very small children, people in wheelchairs, and people on crutches
being expelled across the bridges back into Mexico. For many, their vulnerabilities are
visible even at a distance.
9. Also, around February 2021, shelters in Ciudad Juarez, Mexico began asking us to come
to provide guidance to desperate families and individual stuck in Mexico. We were asked
to visit and explain to those asylum seekers why they were not allowed to access the
asylum system in the U.S., despite the change in administration.
10. Through these interviews and presentations, I was horrified to hear stories of people
expelled without being told by CBP that they were being expelled. Families flown
laterally by DHS from one part of the border region to another before being expelled
were falsely told by Border Patrol agents that they were being taken to see a judge.
Others were told by Border Patrol that they were heading to shelters in the U.S. where
they would be able to talk to a lawyer. But these families were misled, and ultimately
expelled under Title 42, not knowing they were being forced to Mexico.
11. One case I recall vividly was that of a former police officer from El Salvador, who
traveled with his wife and three children. Several of my clients that were former police
officers from El Salvador have been granted asylum. I believed this man presented a
strong case for asylum. When he crossed the border, he had expressed fear of return to El
Salvador and pleaded with the Border Patrol agents that apprehended him to listen to his
story. One agent initially said he would listen, but other agents told him to shut up. He
was not allowed to express his fear and was expelled to Ciudad Juarez with his family.
12. On Monday, March 29, 2021, at 4:00 PM, I joined a meeting that included CBP
Commissioner Miller, where the group in attendance was informed by local CBP
leadership that, as part of the Title 42 process, officers were supposed to screen for
claims under the Convention against Torture (“CAT”). Under the Title 42 process, CAT
screenings, which carry a higher standard than regular asylum assessments, are supposed
to occur but rarely do in practice.
13. After that, I made sure to ask expelled families and individuals in Ciudad Juarez if they
had any chance to raise their fear claims. Dozens of families and individuals consistently
reported to me that they were not allowed to speak while in Border Patrol custody and
that there was no opportunity to raise their fear claims.
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14. In February 2021, I also conducted interviews and presented to groups of Haitians
expelled back to Mexico under the Title 42 process. CBP dumped whole families on the
street in Mexico, with children expelled without their shoes. All of the families I spoke
with claimed political persecution based on the situation in Haiti. They were all shocked
that there was no ability to access asylum in the United States.
15. Asylum seekers subjected to the lateral flights prior to expulsion also reported having to
urinate on themselves during the long process. They reported asking to use the restroom,
for basic food and milk for children, and those requests being denied by Border Patrol
agents and other officials. One man reported only receiving one small carton of milk
during the long processes and flight, despite his pleas for more food for his small child.
Families reported the process taking some 16 hours.
16. In one case received by our organization, a mother and her 5-year-old daughter were
expelled to Mexico from the United States after fleeing sexual assault and domestic
violence in Guatemala. After being expelled to Ciudad Juarez this mother was raped. The
family also faced ongoing extortion and death threats from smugglers in Mexico
following their expulsion.
Processing at El Paso, Texas
17. In April 2021, Las Americas started referring clients for exemption to Title 42, first under
the Huisha referrals process, and later as a primary referrer to the NGO consortium
exemption process. We have provided over 900 referrals to the NGO consortium process.
For those families and individuals, we conduct an initial consultation with fill out the
required questions for submission to Customs and Border Protection.
18. The El Paso community has always stepped up and put together extensive capacity to
provide shelter in the El Paso and southern New Mexico area. Shelter capacity in the
region has never been fully taken advantage of by the government.
19. The El Paso shelter system is currently receiving only around 50 people a day through the
NGO consortium exemption process and around another 10 per week processed out from
the Migrant Protection Protocols. Meanwhile, the local shelter system has hundreds of
beds available each day. There are ample, under-utilized local resources and willingness
from the local community to receive released asylum seekers in line with public health
measures.
20. Despite our readiness and willingness, which we clearly communicate to the government,
the government had continuously failed to fully utilize those resources.
21. The government is capable of managing its own processing at ports of entry and the there
is ample capacity in the El Paso and southern New Mexico region to receive asylum
seekers.
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22. In my opinion, the Title 42 process should be ended immediately. Asylum seekers should
be processed into the United States and we have the capacity to receive them, consistent
with public health protocols.
I declare under penalty of perjury under the laws of the United States and Texas that the
foregoing is true and correct.
Executed on: August 10, 2021, in El Paso, Texas, United States.
Signature:
Linda Rivas
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1
DECLARATION OF MARISA LIMÓN GARZA
I, Marisa Limón Garza, pursuant to 28 U.S.C. § 1746, declare as follows:
Summary
1. This declaration describes the efforts that my organization and our partners have
undertaken to build infrastructure and capacity to receive migrants, including migrant
families, into the United States. We have worked in conjunction with state and local
public health authorities to ensure that our systems include COVID-19 testing and
quarantine protocols. Despite our efforts, which we undertook at the encouragement of
the federal government, much of our capacity remains unused, while the government
expels families back to Mexico. Our efforts could also be scaled up even further if the
federal government would devote serious funding and support to our efforts.
Qualifications
2. I am the Deputy Director of the Hope Border Institute, a faith-based independent Catholic
social justice organization focused on borderland-based research, policy and advocacy,
and humanitarian response measures. I have served as Deputy Director for the past three
years.
3. As Deputy Director, I oversee day to day operations of the organization and play a central
role in a variety of work on immigration policy and strategy, as well as play a central role
in humanitarian response efforts on both the U.S. and Mexico sides of the border in the El
Paso / Ciudad Juárez area. In addition to overseeing our organization’s direct work, I
collaborate closely with other shelter providers, nonprofits, state and local institutions,
and others in the region who work on building capacity to receive migrants who have
come to the United States. I make this declaration based on my personal and professional
experience at the Hope Border Institute working with noncitizen children and families
subject to the Title 42 Process since it began in March 2020.
In partnership with local authorities, COVID-19 protocols are in place ensure against
spread in our local shelter systems and community.
4. In July 2019, the Hope Border Institute, in partnership along with the Diocese of El Paso
established a border refugee assistance philanthropic fund focused on the needs of asylum
seekers to establish capacity to welcome asylum seekers into the United States. When
Title 42 went into effect in March 2020, we expanded this capacity development work to
include migrants allowed into the country under exemptions to Title 42. We also
developed infrastructure to ensure that asylum seekers could be welcomed in a way that
reduces risk of COVID-19 spread.
Document Ref: WBNQT-67DMG-YRFO8-KROYN
Page 1 of 5
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2
5. Monies raised through this fund have supported healthcare programs, psycho-social
support efforts, shelter infrastructure, a medical burse, COVID testing, vaccinations for
childhood illnesses, food and accompaniment.
6. After engagement with the Biden administration transition team, and due to their focus on
the need to partner with U.S. organizations to better manage border processing, we
ramped up efforts to increase capacity on the U.S. side of the border. Working with El
Paso County, the Frontera Welcome Coalition, and other humanitarian groups, we
developed plans in support of and in coordination with the Annunciation House shelter –
El Paso’s largest shelter provider.
7. In collaboration with the city and county Office of Emergency Management (our liaison
to the public health department) and health care professionals, we developed a plan for
safely and efficiently processing and housing released migrants into local shelters and
onward to their home destinations.
8. Local health authorities and partners visited and consulted with Annunciation House
shelters and other prospective shelter space to ensure compliance with all COVID-19
regulations and protections. The shelters thus developed clear protocols for testing and
quarantining procedures for positive cases.
9. The City of El Paso and El Paso County made available hotels for COVID-19 quarantine
for any migrants or anyone else who did not have the resources to follow quarantine
protocols after testing positive. Any person in the community, including migrants
released by CBP or ICE, that did not have a place to quarantine could do so safely in one
of the provided hotels. Therefore, our system is designed to ensure everyone is medically
cleared prior to onward travel or admittance to a shelter.
10. We also invested in personal protective equipment, cleaning supplies and other
necessities for keeping our shelter system protected against COVID-19 spread.
11. As Title 42 remained in effect we also expanded our efforts to work with shelters in
Ciudad Juárez, Mexico, so that the same protective measures were in place at shelters on
the Mexican side of the border for those subjected to expulsions. As part of this pilot
project in Ciudad Juárez we worked with one shelter with a capacity to house
approximately 40 families and individuals. Our efforts did not expand in Ciudad Juárez
given other organizations’ commitment to duplicating the same efforts at other shelters in
Mexico.
12. These efforts, principally focused on the U.S. side of the border, began in December 2020
and continue to date. By late February 2021 or early March 2021, we were fully prepared
to receive migrants in our shelter system with these measures in place, well before
vaccines were widely available. Since COVID vaccines are now widely available in the
U.S., all shelter operators and volunteers are fully vaccinated. Each shelter is also
equipped to provide its own rapid testing and vaccines are offered to arriving migrants.
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The administration has not fully utilized the capacity available in our COVID-19 safe local
shelter systems
13. I estimate that the combined El Paso-New Mexico region has over 2,000 shelter beds in
safe, welcoming, and non-detention settings where families have access to meals, medical
care, and support with travel arrangements. That number could be greatly increased by
using hotels, should the need arise. Yet, as of July 2021, less than 10 percent of that
capacity was currently in use.
14. The combined capacity of Annunciation House’s facilities and a satellite network of
smaller shelters and parishes in El Paso is approximately 800 to 1,000 beds, with rapid
turnaround of guests and the ability to expand and contract as needed. Las Cruces, New
Mexico, which is less than an hour drive from El Paso, has nightly capacity for
approximately 700 people coordinated through the New Mexico Hospitality Coalition.
The shelter network in Albuquerque, New Mexico can host 300 people per day.
15. Migrants currently being processed through the ports of entry must test negative before
they cross. Those released to local shelters directly from ICE detention centers are
regularly tested prior to release so that their COVID status is known. CBP does
occasionally release migrants through Border Patrol directly to Annunciation House with
a “COVID unknown” status that have entered without inspection in-between a port of
entry, but those migrants are COVID tested at Annunciation House once they arrive. If
any migrant coming through these various avenues of release tests positive at any point,
they are quarantined and subject to protocols. After quarantine and a negative COVID-
19 test, those migrants are welcomed back into local shelters for assistance with onward
travel to their final destination. All local reception efforts were designed in partnership
with the Office of Emergency Management, our liaison to the public health department.
16. To date, there have not been any COVID-19 outbreaks in local shelters.
17. In addition to our shelter capacity, Endeavors, a private non-profit contracted by ICE,
opened two hotel facilities that provide several hundred additional beds available for
local release. Those facilities also include COVID-19 testing and required quarantine
when necessary.
18. Unfortunately, the capacity and COVID-19 safe systems we set up have never been fully
utilized by the administration. We have had regular meetings with Department of
Homeland Security and White House officials where, at every meeting, we stress that we
are prepared to and have resources and safe systems in place to welcome families and
individuals.
19. Despite our capacity and COVID-19 protocols, the administration is only admitting a
total of approximately 50-70 people per day at the ports of entry. We also receive a
relatively small number of releases from ICE and Border Patrol, who in most cases
people who crossed between ports of entry.
Document Ref: WBNQT-67DMG-YRFO8-KROYN
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20. In total, our shelter system is capable of housing over 1,000 persons each night, but is
only receiving less than 300 per week – a minuscule flow compared to capacity available
to receive them.
We have ample capacity to transport migrants released to local shelters
21. Hope Border Institute partners with El Paso County to work with Project Amistad, a local
non-profit, to provide transportation shuttles from 7:00am to 4:00pm every day between
shelters, the airport, the bus station, and ports of entry. We also have a private shuttle
company to coordinate transportation for anyone released after 4:00pm, provided directly
through Annunciation House. All migrants over the age of six, drivers, and any
volunteers are fully masked. All migrants being transported are COVID negative.
22. Hope Border Institute, along with partners, are able to leverage resources from local
transportations networks to provide needed transportation for released migrants.
Resources are available to add additional transportation if needed and, with additional
support, any required transportation could be readily available through partnership with
the local and county authorities.
“Lateral flights” have impeded COVID protocols in Ciudad Juárez and severely
traumatized families.
23. During 2021, the U.S. government has sometimes transported migrants apprehended in
other border regions, mainly the Rio Grande Valley, and flown them to El Paso for
expulsion under Title 42 to Ciudad Juárez, Mexico. My understanding is that as many as
100 hundred noncitizens can be put on a single flight. My understanding also is that none
of these noncitizens are tested before being put on a flight, or after they are designated for
expulsion. We have worked diligently with our Mexican partners to receive families
expelled to Ciudad Juárez. Because these families are “COVID-19 status unknown,” they
need to be tested and potentially quarantined.
24. Local Mexican authorities, in collaboration with the International Organization for
Migration (IOM), established a hotel for quarantining migrants in Ciudad Juárez with
either COVID-19 symptoms or who tested positive. Anyone testing positive at either a
local shelter or upon expulsion from the United States can quarantine for 14 days and
later be placed in a shelter with capacity. This system is designed to try and keep shelters
in Ciudad Juárez COVID-19 free.
25. At several points in recent months, the expulsion of additional families via “lateral
flights” have overwhelmed systems in place in Ciudad Juárez, leaving many families on
the street, without proper shelter or in the hands of smugglers.
26. For example, I am currently seeking quarantine space for 5 people who tested positive,
out of 100, after being expelled following a “lateral flight” last week. The IOM hotel in
Ciudad Juárez is currently at capacity. Had these families been released in the United
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5
States, they would have immediately been taken to hotel quarantine and afterwards
provided shelter and assistance in onward travel to their final destination. Instead, they
find themselves on the streets of Ciudad Juárez.
27. “Lateral flights” also exacerbate trauma, as U.S. authorities frequently lie to families
about where they are heading, telling them they are going to shelters in the United States
and not being kicked back into Mexico.
28. Families subjected to “lateral flights” also report a lack of food, children with dirty
diapers, and mistreatment by CBP agents.
29. Based on our experience, “lateral flights” only exacerbate the situation by facilitating
COVID-19 transmission. They subject families to ongoing suffering, lack appropriate
COVID-19 protocols, and needlessly expel noncitizens to Mexico when U.S.-based
shelter networks stand ready to receive them here.
The administration has failed to take its own steps to establish COVID-19 safe protocols for
releasing migrants in the United States.
30. The administration, through meetings with local stakeholders, pushed organizations like
ours and our partners to increase capacity for shelters on the United States side of the
border. And we did exactly that, in partnership with local city and county agencies, and in
ways that our consistent with maximizing public health. And yet, as stated above, we
have shelter beds standing unused while the U.S. government expels noncitizens to
Mexico.
31. I also firmly believe that the systems we have developed are scalable, if the U.S.
government were to invest additional serious resources and funding. Yet, the
administration has never shared with us their actual capacity or any plans for increasing
their ability to process more people to our systems.
I declare under penalty of perjury under the laws of the United States and Texas that the
foregoing is true and correct.
Executed on: August 9, 2021, in El Paso, Texas, United States.
Signature:
Marisa Limón Garza
Document Ref: WBNQT-67DMG-YRFO8-KROYN
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Signature Certificate
Document Ref.: WBNQT-67DMG-YRFO8-KROYN
Document signed by:
Marisa Limón Garza
E-mail:
info@hopeborder.org
Signed via link
IP: 99.47.136.14
Date: 09 Aug 2021 22:35:41 UTC
Document completed by all parties on:
09 Aug 2021 22:35:41 UTC
Page 1 of 1
Signed with PandaDoc.com
PandaDoc is a document workflow and certified eSignature
solution trusted by 25,000+ companies worldwide.
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1
DECLARATION OF ASTRID DOMINGUEZ
I, Marie Astrid Dominguez, pursuant to 28 U.S.C. § 1746, declare as follows:
1. I make this declaration based on my personal experience working with noncitizen
children and families subject to the Title 42 Process. This declaration addresses
processing capacity at the Brownsville and Hidalgo Ports of Entry. In my opinion, both
ports have the capacity to process more migrants and asylum seekers than they are
currently using. In addition, nongovernmental organizations on the U.S. side of the
border in the Brownsville and Hidalgo areas have built up capacity to test migrants for
COVID-19 and quarantine them.
2. The migrants I work with have also been subjected to great harm due to their expulsions.
For example, I am aware of one case involving a father with a 9-year-old daughter with a
spine injury; the father carried his visibly disabled daughter across the border but were
nevertheless expelled. Numerous women have reported they were violated and assaulted
after U.S. border agents expelled them back to Mexico.
3. From late 2020, I have been working closely with the Rio Grande Valley (RGV)
Welcoming Committee/Comité de Bienvenida and now facilitate their meetings as a
consultant. We are several dozen lawyers and advocates dedicated to welcoming
migrants with dignity and assisting government entities with reopening the U.S.–Mexico
border to regular asylum and other processing of noncitizens seeking protection, safety,
and family reunification.
4. I have been a border advocate since 2012, when I began work with the ACLU of Texas
that lasted until May 2021. I have personally been involved in submitting Title 42
exemption requests for more than one hundred individuals and families. I interview
migrants and assemble the required information to be submitted to the U.S.
government. I have also participated in frequent meetings with a variety of U.S.
government officials responsible for both border operations and border policy, including
at the Brownsville and Hidalgo ports of entry.
Processing Capacity at the Brownsville and Hidalgo Ports of Entry
5. My work focuses primarily on noncitizens coming through two ports of entry, which are
respectively located in Brownsville and Hidalgo, Texas, opposite the Mexican cities of
Matamoros and Reynosa, Tamaulipas. I am very familiar with operations and capacity in
those ports via my work in helping asylum seekers obtain exemptions under Title 42, as
well as working with local NGOs and advocates.
6. Until recently, there were two main processes for obtaining Title 42 exemptions. The first
process is managed by a consortium of nongovernmental organizations. The second
process involved cases submitted directly by lawyers and advocates to the ACLU, which
then submitted them to the U.S. government.
7. Noncitizens seeking to come through the Brownsville port of entry as Title 42
exemptions are tested for COVID-19 at the Resource Center Matamoros, a nonprofit
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2
collaborative providing various support services. This testing typically occurs 72 hours
in advance of when the noncitizen is scheduled to cross. The U.S. government requires
the noncitizen to test negative in order cross via the port. If the test is positive, they are
not permitted to cross until a negative result.
8. Migrants crossing through the Hidalgo, TX port of entry as Title 42 exemptions are tested
for COVID-19 at Senda de Vida, a nongovernmental overnight shelter. Again, the testing
occurs 72 hours in advance of when the noncitizen is expected to present at the port, and
the U.S. government does not permit them to cross unless they show a negative result.
9. In my opinion, neither the Brownsville nor the Hidalgo port is operating at capacity. This
conclusion is partly because the ports are designed to process large numbers of people
coming to the United States for other reasons, e.g. tourism or leisure, but such noncitizens
cannot currently enter the United States because of so-called “essential travel” bans.
10. The federal government could also explore ways to minimize time spent at ports by
people who have not provided advance information before coming to the port. For
example, not all immigration-processing functions may need to take place at a port of
entry. After verifying the noncitizen’s identity and checking that the person presents no
criminal, safety, or security concerns, the noncitizen could quickly be sent to a secondary
processing center where, for example, they could be issued any necessary paperwork
related to their immigration cases.
Processing Capacity on the U.S. Side
11. Noncitizens who cross between ports of entry near Brownsville and Hidalgo and
encounter Border Patrol agents are processed by CBP and, if they are permitted to remain
instead of being expelled or detained, are released to local nongovernmental
organizations that provide universal testing for COVID-19 and social services.
12. For example, noncitizens who enter near the Hidalgo area are typically sent to McAllen,
Texas, where Catholic Charities of the Rio Grande Valley runs the Humanitarian Respite
Center (HRC). The HRC receives them and conducts universal COVID-19 testing with
DHS support. In Brownsville, CBP transports noncitizens to a receiving area at the
Brownsville bus station, where the City of Brownsville provides support and DHS has
been involved in ensuring testing for COVID-19.
13. Nonprofits, in conjunction with local governments, have developed infrastructure to
receive, test, and quarantine migrants. For example, the City of McAllen has raised an
emergency shelter that can house approximately 650 noncitizens who have tested positive
for COVID-19. Other organizations, including Catholic religious organizations, have
contracted with 10 hotels “in a 40-mile radius from the South Texas towns of Weslaco to
La Joya and Edinburg and Mission” for quarantine rooms that can accommodate at least
1,000 people. In Brownsville, the City offers noncitizens who test positive an
accommodation for a person’s quarantine period with financial support available. There
is also quarantine capacity at a local overnight shelter called the Ozanam Center.
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14. I am aware that Catholic Charities of the Rio Grande Valley has reported near-universal
compliance with quarantine requirements by migrants who test positive at the
HRC. Positive tests at the Brownsville bus station have also been followed by
quarantine. My understanding is that noncitizens released in both Brownsville and
Hidalgo are offered COVID-19 vaccines.
Noncitizens Subjected to Title 42 Face Grave Danger
15. My work with the Title 42 exemption process has exposed me to the trauma of hundreds
of migrants denied an opportunity to present asylum claims to protection in the United
States. The migrants I work with report that they have been expelled to unsafe conditions
in Mexico that include homelessness, violence from organized crime, and medical
jeopardy. Many have detailed stories and documentary evidence of harm in their home
countries. Others are so traumatized that eliciting their hardship is challenging and
psychologically delicate.
16. I am aware of many cases where women in advanced pregnancy have been expelled, as
well as noncitizens with significant mental and physical disabilities, such as children with
special needs and noncitizens with visual disabilities. Our Welcoming Committee was
involved in the case of D., a 9-year-old girl with a spine injury whose father carried her to
the U.S –Mexico border from Honduras. Yet they were expelled by Border Patrol despite
pleading for consideration of D.’s medical condition.
17. Expulsions are taking place to Reynosa and other Mexican cities that are known, and
reported by the State Department, to be centers of violent crime against migrants. In
particular, sexual violence against female migrants is widespread, even when they are
kidnapped with their children. U.S. government expulsions are sending women and
children into the hands of rapists. I have talked with many women who were violated
repeatedly and brutally by kidnappers after U.S. government officers refused to assess
their protection claims. Sometimes these kidnappings happen within hours of expulsion.
18. Despite rampant kidnapping, which often includes deprivation of food and torture,
families with young children continue to be expelled to Reynosa. There are no state-
provided services for them and the population living unhoused in city plazas now exceeds
4,000 people who are often targeted by organized crime. Family separations also occur
when parts of a family are allowed to stay in the U.S. but others are expelled. I have
come across parental separations where one parent and a very young child were allowed
to stay by Border Patrol while the second parent with an older child was expelled.
I declare under penalty of perjury under the laws of the United States that the foregoing is true
and correct. Executed on: August 11, 2021, in Toronto, Ontario, Canada.
Signature:
__________________________________________
Marie Astrid Dominguez
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DECLARATION OF CHELSEA SACHAU
I, Chelsea Jordan Sachau, declare under penalty of perjury, that the following is true and correct
to the best of my knowledge:
1. I make this declaration based on my personal knowledge except where I have indicated
otherwise. If called as a witness, I could and would testify competently and truthfully to
these matters.
Summary
2. Based on my experience with Title 42 along the Arizona-Mexico border, the number of
migrants who test positive on the Mexican side before entering is exceedingly low, as
outlined below.
3. Title 42 has resulted in grave harm to our clients. They face kidnapping, rape, extortion,
and other violence on a regular basis.
Expertise
4. My name is Chelsea Sachau and I am an Equal Justice Works Fellow at the Florence
Immigrant and Refugee Rights Project in Arizona (“Florence Project”) where I have been
employed for 11 months. Founded in 1989, the Florence Project is a 501(c)(3) nonprofit
legal service organization providing free legal and social services to adults and
unaccompanied children facing removal proceedings in Arizona.
5. At the Florence Project, I work on the Border Action Team. Since 2017, the Florence
Project has worked in partnership with the Kino Border Initiative (KBI) by creating the
Border Action Team to provide legal services to migrants at KBI’s Aid Center for
Migrants located in Nogales, Sonora, Mexico. The Border Action Team also works in
close collaboration with other local legal services, humanitarian, and community
organizations to support migrants in Sonora, Mexico or detained in the state of Arizona.
In this capacity, I have provided Know Your Rights orientations, intakes, referrals,
asylum application assistance, support with humanitarian parole, and direct
representation, among other services, to individuals and families subject to various border
policies, including the “Order Suspending Introduction of Certain Persons from Countries
Where a Communicable Disease Exists” issued by the Centers for Disease Control and
Prevention (CDC), commonly referred to as “Title 42.”1
Background
6. The Title 42 expulsion policy has closed the US border to nearly all asylum
seekers since March 20, 2021, with the exception of unaccompanied minors. Recently,
while Title 42 has been in effect, two possible exception systems emerged: the
1 https://www.cdc.gov/coronavirus/downloads/10.13.2020-CDC-Order-Prohibiting-Introduction-of-Persons-FINAL-
ALL-CLEAR-encrypted.pdf
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exemption process in this litigation (“the exemption process”) and the Consortium
process. While there are some distinctions between the two processes, they both largely
functioned by having legal service providers and other non-profit organizations refer
particularly vulnerable families and/or individuals to the government to be considered as
an exception to Title 42. Once approved, the families and individuals were scheduled for
dates and times to present at designated ports of entry along the border, and were
processed into the U.S. by immigration authorities and placed in Title 8 removal
proceedings. Depending on the details of the particular case, many were paroled directly
from the port of entry, but others were referred to Immigration and Customs
Enforcement (ICE), which then determined whether to place the individual in detention
or in an alternatives to detention program, such as the use of GPS monitoring devices.
7. The Florence Project made at least 719 referrals for families and individuals to be
excepted from Title 42 through both processes. In total, FIRRP referred at least 2,107
persons through these processes. As of August 9, 2021, 127 referrals (about 374 persons)
remain pending – meaning these individuals await a call from the local Consortium
partner, COVID testing, and a scheduled date to enter into the U.S.
COVID-19 positivity rates for migrant families crossing into Arizona are extremely low
8. Initially, particularly vulnerable families and individuals referred through the exemption
process in this litigation were not required to receive COVID-19 testing in Mexico prior
to presenting at the Nogales POE. However, all persons who were referred through the
exemption process and presented at the Nogales POE prior to June 7, 2021 were released
from the port and then transported to shelters in Tucson, AZ, where they were tested
promptly upon arrival. There was quarantine space available for those who tested
positive.
9. In early June 2021 the U.S. government abruptly changed the COVID policy for the
exemption process: all individuals ages six years or older who were referred through the
exemption process were required to be COVID tested in Mexico prior to presenting at the
designated ports of entry, and should anyone test positive, the entire family would be
required to quarantine in Mexico.
10. Of the 137 persons referred through the exemption process who were required to
undergo testing for COVID-19 in Nogales, Sonora, Mexico, only one individual
tested positive for COVID-19. This is a 0.72% COVID-19 positivity rate amongst
the exemption clients for whom we were forced to coordinate testing and received
access to their COVID test results.
11. The Nogales U.S. Port of Entry does not provide COVID-19 testing, vaccines, or
quarantine space to any non-citizens who are referred for exceptions to Title 42. The
local humanitarian partners in Mexico, with support from partners in Arizona, were
forced to assume those costs and responsibilities through the exemption and Consortium
processes.
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CBP has additional processing capacity in the Tucson Sector
12. The Tucson Sector of Customs and Border Patrol (CBP) covers most of the state of
Arizona, from the New Mexico State line to the Yuma County line, an area covering a
total of 262 border miles.2 There are nine (9) ports of entry – organized into eight (8)
CBP stations – in the Tucson region. The ports of entry are (from west to east): San Luis,
Yuma, Lukeville, Sasabe, Nogales (there are three within Nogales – Mariposa,
DeConcini, and Morely Gate), Naco, and Douglas. However, CBP only processes
asylum seekers excepted from Title 42 at the DeConcini POE.
13. From the end of March 2021 until the last day of May 2021, the Nogales POE refused to
process any more than ten (10) persons per day. The stated reason was that the Nogales
POE did not have the staff capacity to process any more persons per day. This is despite
reports that the government had instructed ports to increase capacity to process 50
persons per day if necessary. Moreover, the alleged lack of staff capacity was also
contrary to what the Florence Project staff witnessed on a regular basis in April and May
2021. The Florence Project staff crossed the border at least once per day for months
during Title 42, and we frequently saw one or more CBP officers sitting idly at desks at
either the DeConcini Port of Entry or the Mariposa Land Port of Entry in Nogales.
14. From May 31, 2021 through early July 2021, the Nogales POE was processing 30
persons per day in total, Monday through Friday, with a few exceptionally urgent cases
being processed on Saturdays. Beginning July 12, 2021, Nogales POE again increased its
capacity and began to allow for 40 persons per day to present for processing. Beginning
in early August, the Nogales POE agreed to expand processing capacity even further to
50 persons per day.
15. The Florence Project and other legal and humanitarian service providers have repeatedly
requested that the other ports of entry process asylum seekers through the exemption or
Consortium processes, as there are hundreds of displaced persons in more remote parts of
the border, in particular Lukeville and San Luis ports of entry, as hundreds of our remote
clients are displaced in Sonoyta, Sonora and San Luis Rio Colorado, Sonora. Repeatedly,
CBP has refused to do so.
16. The government’s refusal to process particularly vulnerable families at remote ports of
entry has dire consequences for displaced migrants. In late July 2021, cartel violence
began to escalate even more in Sonora. Many of the highways that migrants displaced in
other parts of Sonora would need to take in order to travel to Nogales, Sonora for
processing would place the families we represent directly in the path of the cartel
fighting.
Dangers for expelled families
17. Migrant families expelled under Title 42 to Sonora face extreme danger and live in
precarity. Few have access to safe housing, medical care, or work to support themselves.
They face kidnapping, rape, extortion, and other violence on a regular basis.
2 https://www.cbp.gov/border-security/along-us-borders/border-patrol-sectors/tucson-sector-arizona
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18. For example, in the spring of 2021, the Florence Project represented a young woman who
was kidnapped in Mexico, held hostage for weeks, repeatedly raped, and then abandoned
in the United States near Phoenix. Though Border Patrol did take her to the hospital on
account of her obvious injuries and trauma, she nonetheless was expelled to Mexico
under Title 42, where she was at risk of being re-trafficked.
19. In mid-February 2021, the Florence Project provided a remote consultation to a single-
mother in Sasabe, Sonora, Mexico. On or about March 31, 2021, the mother attempted
suicide in Sasabe, Mexico due to the extreme stress and desperate circumstances without
access to security. Fortunately, the Florence Project was able to work with local
volunteers in Sasabe to get to the mother before she died, and the local volunteers stayed
with her for her own protection and that of her daughter. However, she and her daughter
continued to suffer, given that the single mother could not access any mental health
treatment in Mexico, and did not have any of her medications. The mother’s mental
health began to deteriorate even further when the organized crime groups that control
Sasabe discovered the mother and her daughter had reentered the city without paying the
bribes or extortion fee that many displaced migrants are subjected to. Someone told the
mother that the organized crime boss “was coming back soon, and would be by to see
her,” indicating a threat to the mother and her daughter’s physical safety.
20. The Title 42 expulsion process also pushes asylum seekers, including those facing
imminent danger, to attempt risky border crossings, resulting in deaths and serious
injuries, and makes expelled people more vulnerable to attack.
21. I represented a gay man from El Salvador who U.S. immigration officials separated from
his partner under Title 42. This young man fled El Salvador in late January 2020 due to
persecution by gangs on the basis of his sexual orientation and family ties. My client met
his partner, who was fleeing persecution in Cuba, in Tapachula in February 2020. My
client and his partner were regularly taunted for being gay. Around August or September
2020, neighbors broke into the home my client and his partner shared and robbed them.
After moving to Nogales in October 2020, my client and his partner were constantly
taunted for being gay by a group of men who regularly hung out outside a convenience
store located near their home. In February 2021, the same group of men donned ski
masks and chased after my client, who narrowly escaped into a nearby taxi. The taxi
driver told my client that those men were involved with a cartel and very dangerous. On
or about February 14, 2021, in desperation after all they had endured, my client and his
partner crossed the U.S.-Mexico border in order to present themselves to Border Patrol
agents and request asylum. To their horror, my client and his partner were separated
when they tried to present their asylum claim at the border. They were told by CBP that
only my client’s partner, a Cuban migrant, would be processed into the U.S. and
detained, and that my client, a Salvadoran man, would be expelled back across the border
under Title 42. After being separated from his partner, my client lived alone in Nogales
and took steps to protect himself by minimizing in every way how much time he spent in
public view. My client’s neighbor, a retired woman, helped run his errands so that he
need not be out in public more than necessary, and she also accompanied him if he
needed to attend a meeting or tend to an errand in person.
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22. Florence Project staff also represented a young woman in her third trimester of pregnancy
who fled Guatemala primarily as a result of gender-based violence. Her partner would
beat her, and during her pregnancy it worsened. In one instance, he attempted to abort her
pregnancy by beating her. He told her he would hurt her if she went to the police and she
was afraid he would follow her and threaten her wherever she might hide. She fled
Guatemala to seek asylum in the United States. Unfortunately, she was also persecuted in
Mexico. On around April 15, 2021 she was kidnapped and held captive by a group of
armed traffickers. She was held for ten days, and during her captivity she did not receive
adequate food and was threatened, even though she was pregnant. On around April 25,
2021 she escaped with other kidnapped migrants. The traffickers chased them in vans,
but they were able to escape into the United States. When she was located in the desert,
Border Patrol took her to the Banner Hospital in Tucson, AZ. She was 38 weeks pregnant
and was put on an IV. At the time, she had a contraction, but the doctors told her it was
due to the stress. She was put on an IV and her vitals stabilized. She was also told she had
a urinary and a vaginal infection. However, she was returned to Mexico under Title 42,
despite her late-term pregnancy and medical issues, and attempted intervention by
Florence Project legal advocates who had already filed G-28s in her case to inform
Border Patrol and other DHS officials that they represented the young woman. She was
forced to attend a fear-based screening alone, even though she had counsel. She failed the
USCIS screening despite detailing her kidnapping at the border and despite providing the
names of some of her kidnappers that she had overheard while restrained. Without
informing counsel, CBP expelled the young woman to Nogales, Sonora via the
DeConcini Port of Entry in Nogales, Arizona on April 28, 2021, with no resources and no
place to stay. She indicated that Border Patrol confiscated her medical release documents
before removing her to Mexico. Pregnant, medically vulnerable, and alone, this young
woman was only able to reconnect with the Florence Project after a random benefactor
took pity and took her in for the night. She was then driven to the KBI Migrant Aid
Center, where she received humanitarian services and had a legal intake with the Border
Action Team. The young woman gave birth days after being expelled. On May 8, 2021,
she and her infant were processed into the U.S., however the infant immediately had to
seek medical attention within days of entering the U.S. and nearly died, due to the
circumstances of his birth.
23. The U.S. government’s failure to timely process migrants, to process migrants at all ports
of entry, or to timely end Title 42 continues to expose thousands of migrants to extreme
danger at the hands of cartels or other persecutors in Mexico.
I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.
Executed on August 10, 2021 at Tucson, Arizona.
______________________
Chelsea Sachau
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DECLARATION OF SUSANA VILLÉN IGLESIAS
MEDICAL COORDINATOR FOR MÉDECINS SAN FRONTIÈRES /
DOCTORS WITHOUT BORDERS IN MEXICO
August 11, 2021
I, Susana Villén Iglesias, declare pursuant to 28 U.S.C. § 1746 that the following is true and
correct:
1. Based on Médecins Sans Frontières/Doctors Without Borders’ expertise and experience
working with migrants in Mexico, I am submitting this declaration to explain why there
is no adequate public health rationale to continue expelling immigrant families at the
southern border. The U.S. government can safely process immigrant families, especially
given the widespread availability of COVID-19 vaccines and other mitigation protocols
like rapid testing, outdoor processing, masking and social distancing. These measures are
not only effective against COVID-19 transmission, but they are also well within the U.S.
government’s capacity and resources, especially in light of the extreme hardship,
violence, and trauma that Title 42 has inflicted on migrants.
Background and Experience
2. I am a medical doctor with a post-doctoral degree in tropical medicine and a master’s
degree in Public Health. I have been working with different non-governmental
organizations in medical-humanitarian projects since 1998 in different counties in Africa,
Asia, and Latin America. Currently, I am the medical coordinator in Mexico of Médecins
Sans Frontières (MSF)/Doctors Without Borders. As medical coordinator, I am
responsible for planning and coordinating all medical activities and medical resources for
the mission. In Mexico, we are working with local communities as well as people on the
move. We are providing basic health care in areas with poor access to services as well as
care to survivors of violence and torture.
3. Médecins Sans Frontières (MSF)/Doctors Without Borders is an independent
international medical humanitarian organization that delivers neutral and impartial
emergency aid to people affected by armed conflict, epidemics, natural and man‐made
disasters, and exclusion from health care in more than 70 countries. We were awarded the
Nobel Peace Prize in 1999. The decision to offer assistance in any country or crisis is
based solely on our independent assessment of populations’ needs. We work to ensure
that we have the power to freely evaluate medical needs, to access populations without
restriction, and to directly control the aid we provide. Our financial independence allows
us to provide aid free from any governmental influence that could be used to
further political or military goals. MSF currently operates in the world’s largest
humanitarian crises, including Syria, Ethiopia, Yemen, and South Sudan.
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4. I have reviewed the latest Title 42 order issued by the Centers for Disease Control and
Prevention (CDC).1 In this declaration, I explain how immigrant families can be
processed into the United States in a manner consistent with public health best practices,
taking into account concerns about the Delta variant and other recent COVID-19
developments. To help explain, I will first describe MSF’s work in Mexico, our
observations on COVID-19 protocols related to the processing of asylum seekers out of
the so-called Migrant Protection Protocols (“MPP”), the harm that Title 42 is causing,
and then discuss how Title 42 can be phased out for immigrant families in a manner
consistent with public health guidance.
MSF’s Work in Mexico
5. MSF has been working in Mexico since 1985. Since 2012, MSF has been actively
addressing the health needs of people on the move – including immigrant families –
across the country through the provision of comprehensive primary healthcare, mental
health, social services, and health promotion activities.
6. During the COVID-19 pandemic, MSF adapted and expanded its activities to include
infection prevention and control in health facilities, shelters, and other spaces this
population frequents along the migration route in Mexico. MSF set up diverse specialized
services such as tailored mental health care, which includes psychological first aid,
individual follow-up, and group sessions. MSF assisted in the identification and referral
of suspected COVID-19 cases to the Ministry of Health (MoH), which would send teams
directly to the camp and test them. MSF would in the meantime provide hygiene isolation
kits to suspect cases, which included PPE, paracetamol, rehydration solution, and a guide
for best practices during isolation. MSF worked to minimize the risk of COVID-19
transmission among asylum seekers through the distribution of hygiene kits that included
personal protective equipment (PPE) and alcohol gel. MSF has supported health
facilities, including community centers and hospitals, to strengthen access to adequate
services, particularly with screening, mental health support, health promotion to reduce
stigma, and referral to the MoH. In migrant shelters, MSF also helped in identifying the
best locations and practices for isolation of suspected cases.
7. MSF has also offered tailored support to shelters housing migrants, focusing on: 1)
providing education on COVID-19 protocols and countering misinformation, 2) setting
up infection prevention and control measures such as triage, isolation, washing &
disinfection procedures, social distancing, and proper use of PPE; and 3) setting up
referral systems for severe COVID-19 cases.
1 See CDC, Order Suspending the Right to Introduce Certain Persons from Countries Where a
Quarantinable Communicable Disease Exists (Aug. 2, 2021),
https://www.cdc.gov/coronavirus/2019-ncov/downloads/CDC-Order-Suspending-Right-to-
Introduce-_Final_8-2-21.pdf.
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8. In the north of Mexico, MSF has concentrated its activities in Matamoros, Reynosa,
Nuevo Laredo, Piedras Negras, Ciudad Acuña, Monterrey and Ciudad Juárez. In the
northern border locations, spanning from Texas to California, MSF has been witnessing
for several years the detrimental effects of U.S. migration policies on asylum seekers’
physical and mental health, including policies that forced them to live in dangerous
conditions. For instance, from 2019 through 2021, MSF witnessed and provided care to
asylum seekers forced to wait in Mexico under the MPP program. Since 2020, MSF has
witnessed similar, if not worse, harm to asylum seekers who are expelled from the United
States under Title 42.
MSF’s Experience with COVID-19 Protocols around MPP
9. One of the critical services that MSF has recently provided in Mexico has been providing
physical and mental health services to asylum seekers returned to Mexico under the
former U.S. government program, MPP. Through its presence and work with this
population of asylum seekers, MSF has direct experience with the safety precautions
taken around COVID-19 in Mexico.
10. The Matamoros camp was the direct consequence of the U.S. Government’s
implementation of MPP. While individuals were sent back to Matamoros and forced to
wait for their asylum proceedings, a border camp arose that housed up to 2500 migrants.
In response to critical medical needs, MSF has offered health services in the camp from
the moment it was first established until the last day the camp was standing in March
2021. When COVID-19 appeared in Mexico, MSF adapted its premises and protocols to
include a triage of suspected cases, led the health promotion / COVID-19 prevention
activities at the camp, and stepped up mental health assistance. These protocols were
maintained until March 2021.
11. When the decision to begin unwinding MPP was taken, the United Nations High
Commissioner for Refugees (UNHCR) coordinated with all actors present in the camp in
Matamoros and with other key actors such as the International Organization for
Migration (IOM), United Nations International Children's Emergency Fund (UNICEF),
International Committee of the Red Cross (ICRC), and Hebrew Immigrant Aid Society
(HIAS) to facilitate the phase out. Among its responsibilities, MSF worked with shelters
to apply sound infection prevention and control measures and ensure that people waiting
to be processed and arriving from other Mexican cities faced a lower risk of transmission.
12. MSF relied on a mixture of health education, preventive measures, and clear, simple and
efficient control measures based on symptomology which permit isolation of suspected
and confirmed cases of COVID-19. One of the more important aspects of the model is
consistent implementation of preventive measures (social distancing, masking, hand
washing) at all times, and encouraging the self-declaration of symptoms as soon as they
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appear. This approach includes a system of symptomatic screening, testing, and
medically supervised isolation for those who test positive for COVID-19.
13. Given the nature of COVID-19 transmission and close quarters of the camp, MSF was
especially vigilant about any potential outbreaks. During the period when MSF ran the
mild COVID-19 stabilization center at the Autonomous University of Tamaulipas,
suspected cases were taken there for isolation and medical supervision.
14. As the camp’s population was processed into the U.S., MSF wound down our medical
activities at that specific location. MSF continues to offer health services in key shelters
around the city of Matamoros, as well is the cities of Reynosa, Nuevo Laredo, Monterrey,
Ciudad Acuña and Piedras Negras, where there are still asylum seekers in need.
Harm to Immigrant Families Subject to Title 42
15. For years now, MSF teams have been witnessing firsthand the devastating toll of harsh
US migration policies spanning several administrations on the lives and health of people
forced to flee violence and extreme poverty in Central America, Mexico, and other
countries.
16. MSF has documented the toll expulsion under Title 42 takes on asylum seekers.2 These
individuals and families being rapidly turned around to extremely dangerous cities along
the border are exposed to gang violence and are forced to fend for themselves without
protection from local authorities. But accessing the most basic needs is always difficult
given to the lack of protection, the lack of shelter, and the lack of health care.
17. Some who have been expelled, including Haitian asylum seekers, do not speak Spanish.
Others include people who are injured or ill, people traveling with children, teenagers,
pregnant women, and lesbian, gay, bisexual, and transgender people. All these people are
at increased risk of violence and extortion in Mexico due to their particular
vulnerabilities.
18. MSF mental health teams working with migrants in psychological support groups in
Reynosa have observed signs of complex trauma and depression in these patients. They
report acute reaction to stress, psychosomatic symptoms such as headache and back pain,
hypervigilance due to the insecure location, difficulty sleeping, and fear and anxiety
related to their expulsion or living in violent and unpredictable conditions.
2 MSF, Title 42 Deportations Cause Dire Humanitarian Consequences on Mexico’s Northern
Border (Apr. 29, 2021), https://www.doctorswithoutborders.org/what-we-do/news-
stories/news/title-42-deportations-cause-dire-humanitarian-consequences-mexicos.
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Unwinding Title 42 and Processing Immigrant Families
19. I have reviewed Defendants’ declaration from David Shahoulian dated August 2, 2021,
filed at ECF No. 113-1, as well as the recent August 2, 2021 CDC order regarding Title
42. MSF does not believe that there is adequate public health rationale to justify
continuing to ban immigrant families.
20. Based on MSF’s decades of experience in infection prevention and control and in
responding to public health emergencies across the world, we firmly believe it is well
within the U.S. government’s ability to restore access to asylum at the border while
safeguarding the health of its citizens and those living on its territory. There is no reason
to presume that asylum seekers are more of a threat to public health than any other person
crossing the border from Mexico.
21. The measures the U.S. government can take to safely open the border, specifically to
those in need of protection, include:
A.
Border Processing: Processing asylum seekers on either side of the border should
be done as rapidly as possible and in a way that limits people from being held in
congregate settings so as to reduce the risk of COVID-19 transmission.
Processing should take place in spaces that are well-ventilated and suitable for
expansion of reception should the number of arrivals increase. MSF routinely uses
low-cost temporary items such as snow/safety barrier fencing and shade netting to
facilitate outdoor activities requiring crowd control measures around the world.
B.
Testing: Compared to the general U.S. public, asylum seekers do not pose a
heightened public health risk,3 therefore they should not be subjected to measures
that are not applied to other groups of people crossing the border. However, if the
U.S. Government insists on additional measures, ramped up COVID-19 testing at
the border can be the cornerstone of any system to efficiently process asylum
seekers. We found very low numbers of COVID-infections in border shelters
where MSF has relied on a system of symptomatic screening, testing, and referral
for medically supervised isolation for those who test positive for COVID-19. In
the case of those crossing the border, FDA-approved antigen tests are cost-
effective, produce rapid results, and are well-suited to identifying individuals who
pose an immediate risk of transmission. If testing is implemented, those who test
positive can be isolated and treated. Those who test negative should be paroled
3 Data reflects that number of cases per 100,000 residents is far lower in Mexico compared to the
United States. Compare N.Y. Times, Coronavirus in the U.S.: Latest Map and Case Count
(updated Aug. 10, 2021), https://www.nytimes.com/interactive/2021/us/covid-cases.html, with
N.Y. Times, Tracking Coronavirus in Mexico: Latest Map and Case Count (updated Aug. 10,
20201), https://www.nytimes.com/interactive/2021/world/mexico-covid-cases.html.
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into the U.S. and told to self-quarantine for the officially designated period, which
is in line with the current procedure recommended by the CDC for any
international travelers to the U.S. Measures can be taken to ensure safety during
internal transportation, including through the distribution of face masks and the
use of high-capacity, well-ventilated vehicles.
C.
Isolation/Quarantine: An isolation/quarantine system that is flexible and sensitive
to fluctuations in arrivals can be established. Safety measures including mask use,
ventilation, and reduced density of persons should be applied in those spaces.
D.
Vaccination: Any eligible unvaccinated person including asylum seekers should
be offered a vaccine when they enter the U.S. The U.S. currently has more
capacity to vaccinate Americans, both in terms of vaccine doses and mobilized
health personnel, than are currently being used by people in the U.S. MSF has
been tracking COVID-19 vaccine supply and, to our horror and disappointment,
millions of doses have and may continue to go to waste in the U.S.4 These excess
doses can and should be re-routed for use in other countries, including for those
who are eligible for vaccines at the border. Implementing routine vaccination of
asylum seekers entering from Mexico is well within the scope of current services
offered at some international airports in the U.S.5
22. The Delta variant is already dominant in the U.S. and epidemiological data shows similar
historical rates of COVID-19 infections in the U.S. and Mexico. The CDC places both
countries at the same risk level,6 but, importantly, the number of new cases is
disproportionately higher in the U.S. compared to Mexico.7 The CDC is currently
recommending the same preventive and protective protocols for Delta as were
recommended previously.8 In addition to vaccination, masking, ventilation, physical
4 Dan Levin, The U.S. Is Wasting Vaccine Doses, Even as Cases Rise and Other Countries Suffer
Shortages, N.Y. Times (Aug. 1, 2021), https://www.nytimes.com/2021/08/01/us/covid-us-
vaccine-wasted.html.
5 See, e.g., San Francisco International Airport, Vaccinations at SFO (last accessed Aug. 10,
2021), https://www.flysfo.com/travel-well/vaccination-site-sfo; NBC News, Miami Airport
Offering Free Covid Vaccines to Travelers (May 27, 2021),
https://www.nbcnews.com/now/video/miami-airport-offering-free-covid-vaccines-to-travelers-
113663045707.
6 CDC, Travel Health Notices (updated Aug. 2, 2021), https://www.cdc.gov/coronavirus/2019-
ncov/travelers/map-and-travel-notices.html.
7 See supra n.1 (showing that daily average of cases has increased nearly 120% in last 14 days in
United States compared to 30% in Mexico, and that case rate per 100,000 people in the United
States is nearly triple the rate in Mexico).
8 CDC, Interim Public Health Recommendations for Fully Vaccinated People (updated July 28,
2021), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html
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1
DECLARATION OF KATE CLARK, ESQ.
I, Kate Clark, pursuant to 28 U.S.C. § 1746, declare as follows:
1. I make this declaration based on my personal experience at JFS working with
noncitizen children and families subject to the Title 42 Process since the process
came into effect in March 2020. JFS and other nonprofits and advocacy
organizations, in conjunction with San Diego County and State of California health
authorities, have worked hard to develop effective systems to receive migrant asylum
seekers.
2. We have now built infrastructure to test, quarantine, and provide other necessary
services to migrants shortly after they enter the United States. In my opinion, these
operations are scalable if the federal government were to invest serious
resources, similar to what the government did to build capacity to house
increased numbers of unaccompanied children during 2021.
QUALIFICATIONS
3. I am Senior Director of Immigration Services and Lead Immigration Attorney at
Jewish Family Service of San Diego (“JFS”). Among my responsibilities is
coordinating our organization’s services for migrant refugees who are released from
Customs and Border Protection (“CBP”) custody so that they can seek immigration
relief in the United States.
4. I have been with Jewish Family Service for 11 years. Previously, I have held different
roles in the nonprofit and social services sector, including Director of Immigration
Services, Senior Attorney, and Immigration Attorney within the Immigration Services
division at JFS. At Jewish Family Service, I supervise a staff of approximately 100
staff between the legal services and humanitarian shelter operations.
5. JFS receives migrants directly from immigration custody. They often come directly
from Customs and Border Protection (“CBP”) after being swiftly processed for
release into the United States near the border, immediately after the migrants’ entry.
The migrants we serve are a mix of families with young children and single adults.
6. JFS operates one of two major “hubs” in the San Diego area that receive migrants.
Our hub receives migrants who are coming through the San Ysidro port of entry,
which is located near San Diego, California. The migrants coming through the port of
entry fall into a number of categories, including noncitizens processed via exemptions
from Title 42, noncitizens who were formerly forced to wait in Mexico for their
removal proceedings under the Migration Protection Protocols, and other noncitizens
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2
who DHS has paroled into the United States for various reasons. We also receive
some migrants who have sought to cross unlawfully through the port.
7. Catholic Charities operates the other major receiving hub. Their hub focuses on
noncitizens who cross the California-Mexico border between ports of entry, and are
apprehended by U.S. Border Patrol. Between our two hubs, I estimate that we have
the capacity to receive approximately 250-300 migrants per day and currently receive
that amount per day.
8. JFS’s hub is located in a hotel. We have chartered a set of buses that moves back and
forth all day from the San Ysidro port, which transport migrants from the port to our
hotel hub. One set of buses is for those migrants who have not been tested prior to
coming to the port; the other bus runs are for those who have already tested negative
before coming to the United States. Once a migrant arrives at the hub, and if they
have not already been tested before crossing, we test them for COVID-19. We also
test those noncitizens who have been tested, but are currently showing symptoms for
COVID-19. We use a PCR test, which typically returns a result within twelve hours.
9. If the migrant tests negative, or has already been tested and is not showing symptoms,
they stay in a room at our hub while we help them travel to their ultimate destination
in the United States. While they are staying at our hub, we provide food, shelter,
hygiene, medical, case management, and legal services. We also help make travel
arrangements. Such migrants typically stay at our hub for about two to three days,
before they leave for their next destination.
10. If the migrant tests positive for COVID-19, the County of San Diego requires those
noncitizens to quarantine for approximately 10 days. The County provides special
hotel spaces for quarantine. I estimate that the County has reserved several hundred
hotel beds for migrants to quarantine, and is working on developing more capacity.
11. After the migrant leaves quarantine, they return to our hub, where we provide them
the services described above, and help them move onto their next U.S. destination.
12. We also offer the vaccine to all migrants who come through our hub. We offer both
the Johnson & Johnson one-shot vaccine, as well as the Pfizer two-shot vaccine.
13. Both JFS’s hub and Catholic Charities’ hub also receive migrants who are transferred
to the San Diego area via so-called “lateral flights.” These flights are comprised of
migrants who are apprehended in other locations along the U.S.-Mexico border,
typically in the Rio Grande Valley region of Texas. Based on my observations, and
reports from the migrants themselves, CBP packs migrants onto these flights without
any testing or safety regimens. Some number of migrants on each flight are then
expelled back to Mexico via the San Ysidro port, and the remainder are allowed into
the United States and then eventually reach our hubs. Thus, by packing untested
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3
migrants into flights and later into short-term BP detention facilities in the United
States, CBP puts them at risk.
14. As described above, JFS and other organizations in the San Diego area have
developed a range of systems to ensure that migrants can be processed both safely
and efficiently as they move on to their next destination in the United States. We have
developed these systems in conjunction with the State and County’s public health
authorities, and ensure that our systems are consistent with public health guidance.
We have built up these systems via a mix of FEMA Emergency Food and Shelter
Program funding, private funding, and public-private partnerships with local
agencies. For example, we receive tests and vaccines from the State of California.
15. Unfortunately, we have developed these systems without the meaningful assistance of
the federal government, aside from the emergency relief funding which has been
provided through FEMA. The federal government could do much more to plan or
develop major infrastructure by investing in community-based support services along
the entire border to provide respite or transitional shelter to individuals and families
upon arrival to the U.S. and facilitate and fund transportation to their destinations
within the U.S., all in a manner that complies with federal, state, and local public
health guidelines and prioritizes the humane and dignified reception of newly arrived
individuals.
16. In my opinion, the federal government could scale up operations like ours by
channeling money and resources to local agencies with proven track records, or even
building up their own physical and other infrastructure to receive migrants. We have
recently seen the federal government conduct such operations to help unaccompanied
migrant children who are now exempt from Title 42. In response to increased
numbers, the federal government moved swiftly to stand up additional shelters and
facilities in California, and instituted testing and quarantine regimes for all
unaccompanied children in federal custody. This example shows that the government
can conduct such operations when it is willing to devote the resources to doing so.
I declare under penalty of perjury under the laws of the United States and California that the
foregoing is true and correct.
Executed on: August 10, 2021, in San Diego, California, United States.
Signature:
Kate Clark
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1
DECLARATION OF AARON REICHLIN-MELNICK
I, Aaron Reichlin-Melnick, make the following declaration based on my personal knowledge and
declare under the penalty of perjury pursuant to 28 U.S.C. § 1746 that the following is true and
correct.
Summary
1.
I submit this declaration to make two principal points in response to the government’s
argument that an injunction of Title 42 expulsions for family unit members would strain CBP’s
ability to safely process asylum seeking families at the border. First, while the government points
to a high number of overall “encounters” with undocumented noncitizens at the border, that
figure is misleading. Title 42 has perversely led to a high level of “recidivism”—individuals
attempting to cross the border (and seek safety in the United States) more than once, and often
many times. Thus Title 42, far from reducing border “encounters,” has in fact increased the
number of border encounters, and thus the number of times CBP officials must interact with
families and other noncitizens.
2.
Second, it is important to place the number of individuals potentially impacted by an
injunction in this case in context. The number of people entering the United States lawfully at
land ports of entry, such as U.S. citizens and permanent residents traveling for pleasure, truck
drivers, students, and people attending business meetings, is vastly larger than the number of
family unit members apprehended and currently subject to Title 42. Indeed, family unit members
who are subjected to Title 42 in June 2021 represented roughly 0.1% of the number of
individuals who entered the United States from Mexico through a land port of entry. Yet while
that vastly larger set of individuals is subject to no testing or other COVID screening, the
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2
government claims the relatively tiny set of families must be expelled in the name of public
health.
Qualifications
3.
I am a Policy Counsel at the American Immigration Council (“Immigration Council”), a
nonprofit and non-partisan organization whose mission includes the use of facts to educate the
public on the important and enduring contributions that immigrants make to America. At the
Immigration Council, I track and analyze immigration-related statistics produced by the
Department of Homeland Security (“DHS”), data on border crossings produced by the
Department of Transportation (“DOT”), and any other available data on border processing
produced by reputable sources.
4.
I have previously submitted declarations analyzing government-produced immigration
statistics in East Bay Sanctuary Covenant v. Barr, 4:19-cv-04073-JST (N.D. Cal. filed July 16,
2019), Innovation Law Lab v. McAleenan, 3:19-cv-00807-RS (N.D. Cal. filed Feb. 14, 2019),
and Padilla v. ICE, No. 2:18-cv-00928-MJP (W.D. Wash. filed June 25, 2018).
5.
In my role as policy counsel, I have extensively studied the impact of the novel coronavirus
SARS-CoV-2 (“COVID-19”) on the United States’ immigration system. I have also extensively
studied the current humanitarian processing challenges occurring at the U.S.-Mexico border.
6.
On April 27, 2021, I testified as an expert on border trends in front of the House Homeland
Security Subcommittee on Border Security, Facilitation, and Operations at a hearing entitled
Unaccompanied Children at the Border: Stakeholder Perspectives on the Way Forward.
7.
In preparation for this declaration I reviewed Defendants’ declarations, the Centers for
Disease Control and Prevention (“CDC”) Title 42 Orders, public statistics on entries into the
United States that are published by U.S. Customs and Border Protection (“CBP”) and DOT, as
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well as public information from the CDC on COVID-19 screening and quarantine protocols for
individuals who enter the United States through a port of entry or who enter irregularly between
ports of entry. I have also reviewed all available data on Title 42 and its effect on individuals
entering between ports of entry, as well as extensive public news reporting on the current status
of testing and quarantine protocols in use by nongovernmental organizations which are assisting
families released by CBP.
Title 42 Artificially Inflates The Total Number Of Border “Encounters”
8.
In opposing an injunction in this case, DHS repeatedly points to the number of “border
encounters.” Decl. of David Shahoulian ¶ 19. DHS argues that because of these high encounter
rates, the Court should not enjoin Title 42 as applied to families.
9.
The statistics on which DHS is relying—rates of “encounters”—are misleading, however,
because Title 42 itself has artificially inflated the number of “encounters” as compared to the
actual number of people seeking to cross the border and find protection in the United States. That
is because when a person attempts to cross multiple times—sometimes 3, 5, 10, or more—each
time they are apprehended is counted as a new “encounter.” And Title 42 has dramatically
increased how often people try to cross the border multiple times—as CBP officials have
themselves admitted.
10. For over a decade, CBP has tracked the “recidivism rate” of individuals encountered at the
southwest border, meaning the percent of those individuals apprehended at the border who have
previously been apprehended. The agency calculates this rate by dividing the number of “unique
individuals” who have been apprehended more than once at the border during a 12-month period
by the total number of “unique individuals” apprehended over that same period. See Carla N.
Argueta, Border Security Metrics Between Ports of Entry, Congressional Research Service, Feb.
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16, 2016, at 7. The statistics refer to “unique individuals” because a single “unique individual”
may be encountered multiple times. For example, if 100 unique individuals were encountered,
and two of them had been encountered more than once in the past 12 months, the recidivism rate
would be 2 percent.
11. From 2007 through 2019, recidivism rates fell steadily. But under Title 42, the recidivism
rate rose from 6.7 percent in Fiscal Year 20191 to 24.9% in Fiscal Year 2020. See Customs and
Border Protection, U.S. Customs and Border Protection Budget Overview: Fiscal Year 2022
Congressional Justification (2021), at CBP – 2. The recidivism rate has risen even further since,
increasing to 40% for Fiscal Year 2021 through May 2021 (see Figure 1).
Figure 1: Border Recidivism Rate, Fiscal Year 2005 to FY 2021 (through May)2
12. That increase makes sense: After Title 42 went into effect, the overwhelming majority of
undocumented Guatemalans, Hondurans, Salvadorans, and Mexicans who crossed the border
were expelled under Title 42 were sent back to Mexico without a deportation order or an
1 The federal government’s fiscal year runs from October 1 through September 30, so Fiscal
Year 2021 began on October 1, 2020.
2 See U.S. Customs and Border Protection, Congressional Budget Justifications, FY 2008-2022;
data for Fiscal Year 2021 through May on file with author.
25%
28% 29% 27% 27%
24%
20%
17% 16% 14% 14% 12% 11% 11%
7%
26%
40%
0%
5%
10%
15%
20%
25%
30%
35%
40%
45%
Recidicvism Rate
Fiscal Year
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opportunity to access to the asylum process. As a result, the rate at which people crossed the
border multiple times began to increase, as desperate individuals sought to cross repeatedly.
13. High recidivism rates since Title 42 went into place have led to a significant inflation of the
overall count of encounters compared to previous years. For example, during the first nine
months of Fiscal Year 2019, CBP recorded 780,479 encounters, of which 721,328 were unique
encounters of people who had not been encountered in the previous 12 months. During the first
nine months of Fiscal Year 2021, CBP recorded 1,119,204 encounters, of which 690,718 were
unique encounters—30,610 fewer unique encounters than in Fiscal Year 2019 despite 338,725
more overall encounters.
14. The increased recidivism rate is new for family units, who have in previous years shown
very low rates of recidivism. For example, through the first nine months of Fiscal Year 2019 the
recidivism rate for members of family units was just 1.5% (6,354 out of 421,428 unique
individuals encountered). By comparison, through the first nine months of Fiscal Year 2021, the
recidivism rate for family units has grown to 16.8% (35,231 out of 209,862 unique individuals
encountered). Reports by advocates along the border indicate that the true rate may be even
higher. After a first failed attempt as a family, some families are breaking up to try to reenter as
single adults and unaccompanied children, in the hope that the children at least will be exempted
from Title 42 and the adults can take a shot at crossing on their own.
15. CBP has formally acknowledged the link between Title 42 and an increased recidivism rate.
See Customs and Border Protection, U.S. Customs and Border Protection Budget Overview:
Fiscal Year 2022 Congressional Justification (2021), at CBP – 2. As the agency explained:
“[I]ncluding persons encountered by Border Patrol and expelled under Title 42 authority has
substantially increased the number of persons counted by this [recidivism rate] measure.” Id.
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16. DHS’s reliance on levels of encounters thus overstates the true level of migration, a fact
which CBP has also acknowledged. “The large number of expulsions during the pandemic has
contributed to a larger-than-usual number of noncitizens making multiple border crossing
attempts, and means total encounters somewhat overstate the number of unique individuals
arriving at the border.” Customs and Border Protection, CBP Announces May 2021 Operational
Update, June 9, 2021, https://www.cbp.gov/newsroom/national-media-release/cbp-announces-
may-2021-operational-update. In other words, Title 42 has led to an exaggerated measure of the
total number of individuals coming to the United States by prompting a larger number of
encounters of the same people attempting to enter over and over.
17. DHS’s declarant suggests that encounters are currently at a “historic” level. Shahoulian
Decl. ¶ 20. But as explained, that encounter data is elevated because of Title 42, so the
comparison to past years in which that program was not encouraging increased recidivism is
comparing apples to oranges. Furthermore, even apart from the government’s failure to properly
take into account the high recidivism rate, the declarant himself acknowledges that total
encounters have been higher in the past, namely in Fiscal Year 2000.
18. DHS’s declarant also makes comparisons to the very early days of the COVID-19
pandemic, including arguing that family encounters have increased “100-fold” since April 2020.
Shahoulian Decl. ¶ 23. But that is misleading as well, as movement around the world cratered
during those months and Mexico went into a 70-day lockdown. Thus, using April 2020 as a
baseline is fundamentally misleading when other more relevant baselines exist. For example,
there were 88,587 encounters of family unit members in May 2019, which is 120 times higher
than the April 2020 figure the declarant uses as his baseline—and is notably higher than the July
2021 figures that he cites.
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19. In sum, the evidence indicates that Title 42 has increased the number of encounters at the
southern border. And yet DHS is paradoxically using that inflated level of encounters to justify
keeping Title 42 in place for families. Indeed, by encouraging repeat crossings, Title 42 may well
be exacerbating the public health situation it is supposed to address: Each successive Title 42
“encounter” means an additional time that CBP must interact with a family, rather than just being
processed once under ordinary immigration procedures.
Permitted Entries At Ports Vastly Outnumber Families Subjected To Title 42
20. Despite some restrictions DHS has imposed on non-essential travel at land ports of entry
between the United States and Mexico, millions of individuals are permitted to enter the United
States from Mexico every month. Permitted entries include not only all U.S. citizens and lawful
permanent residents (traveling for any purpose including tourism), but also any individual
travelling to attend school or work in the United States, all individuals “engaged in lawful cross-
border trade” such as truck drivers, and any individual travelling for medical treatment in the
United States. See, e.g., U.S. Department of Homeland Security, Notification of Temporary
Travel Restrictions Applicable to Land Ports of Entry and Ferries Service Between the United
States and Mexico, 85 Fed. Reg. 22,353 (April 22, 2020).
21. Since March 2021, more than 10 million people a month have entered the United States
from Mexico through a land port of entry. By June 2021, an average of 361,976 people per day
were entering the country through land ports of entry along the southwest border. Notably, these
restrictions do not include a requirement to present a negative test for COVID-19 nor do they
require CBP officials to screen individuals for symptoms of COVID-19.
22. By contrast, approximately 2,583 individuals in family units are apprehended along the
border every day. Shahoulian Decl. ¶ 19. Of those, according to recent government statistics,
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currently approximately 86% are being processed into the country and not expelled. The
remaining 14% who are expelled represent roughly 362 individuals expelled per day, or the
equivalent of 0.1% of the average 361,976 individuals who entered from Mexico at land ports
every day in June 2021. Thus, families subject to Title 42 make up a very small number of
entries into the United States from Mexico. And unlike those entering the United States through
ports of entry, in nearly all cases, families released by CBP and permitted to travel further into
the United States are not only tested for COVID-19 but also given quarantine space if
necessary—albeit generally by nonprofit organizations or local government agencies rather than
the federal government.
EXECUTED this ___10th__ day of August, 2021.
________/s/ Aaron Reichlin-Melnick______
AARON REICHLIN-MELNICK
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DECLARATION OF ALAN E. VALDEZ JUÁREZ
I, Alan E. Valdez Juárez, declare that the following is true and correct:
1. I am the Executive Director of AVS Laboratorios (“AVS”), a medical analysis and
testing laboratory service located in Piedras Negras, Coahuila, Mexico.
2. Earlier this year, AVS began conducting COVID-19 testing for asylum seekers in Piedras
Negras who had received pre-approval for exemptions from the Title 42 Order and had
been scheduled for appointments to present for processing into the United States at the
Eagle Pass, Texas Port of Entry. The majority of the asylum seekers tested by AVS have
been members of families who are scheduled to present at the Port of Entry as family
units. As required by the United States government, all such testing has been performed
within 72 hours of the asylum seekers’ scheduled appointments at the Port of Entry.
3. As of August 6, 2021, AVS has administered 404 COVID-19 tests for asylum seekers
scheduled for appointments to enter the United States as part of this Title 42 exemption
process. Of those 404 tests, 8 came back with positive results reflecting that the
individuals tested were infected with COVID-19. This constitutes a test positivity rate of
1.98 percent.
I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct. Executed on this 6th of August 2021 in Piedras Negras, Coahuila,
Mexico.
s/ Alan E. Valdez Juárez
Alan E. Valdez Juárez
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DECLARATION OF EDGAR RAMÍREZ LÓPEZ
I, Edgar Ramírez López, declare that the following is true and correct:
1. I am the owner and manager of Laboratorio Noralba (“Lab Noralba”), a medical testing
laboratory located in Ciudad Acuña, Coahuila, Mexico.
2. Earlier this year, my lab began conducting COVID-19 testing for asylum seekers in
Ciudad Acuña who had received pre-approval for exemptions from the Title 42 Order
and been scheduled for appointments to present for processing into the United States at
the Port of Entry in Del Rio, Texas. The majority of the asylum seekers tested by Lab
Noralba have been members of families who are scheduled to present at the Port of Entry
as family units. In accordance with requirements of the United States government, all
such testing has been performed within 72 hours of the asylum seekers’ scheduled
appointments at the Port of Entry.
3. As of August 6, 2021, Lab Noralba has administered 186 COVID-19 tests for asylum
seekers scheduled for appointments to enter the United States as part of this Title 42
exemption process. Of those 186 tests to date, none has yet yielded a positive result
indicating that the individual tested was infected with COVID-19.
I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct. Executed on this 6th of August, 2021, in Ciudad Acuña, Coahuila,
Mexico.
s/ Edgar Ramírez López
Edgar Ramírez López
CERTIFICATE OF TRANSLATION
I, Morgan Russell, hereby certify and swear under penalty of perjury that I am competent to
translate between English and Spanish, that I translated the content of the foregoing declaration
to Edgar Ramírez López in Spanish on August 6, 2021, and that he confirmed that its content is
true and correct.
Executed on this 6th of August 2021 in Oakland, California.
s/ Morgan Russell
Morgan Russell
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DECLARATION OF SAMUEL THOMAS BISHOP
I, Samuel Thomas Bishop, declare as follows:
1. I am the Mexico Country Director for Global Response Management (“GRM”), a
veteran-led international medical non-governmental organization that provides
emergency medical services to vulnerable populations displaced by conflict, war, or
disaster.
2. As part of its operations in Matamoros, Tamaulipas, Mexico, GRM conducts SARS-
CoV-2 rapid antigen testing for asylum seekers and others in need of free COVID-19
testing services. The overwhelming majority of people who have received COVID-19
antigen testing at our clinic in Matamoros are asylum seekers who have received pre-
approval for exemptions from the Title 42 Order and been scheduled for appointments to
present for processing at the Brownsville Port of Entry. As required by the United States
government, all such testing for exemption appointments is performed within 72 hours of
the asylum seekers’ scheduled appointments at the Port of Entry.
3. During the month of July 2021, GRM administered 1,111 SARS CoV-2 antigen tests in
Matamoros. Of those tests, 9 came back positive for SARS-CoV-2 antigens. That
constitutes an antigen positivity rate of 0.81%. It is important to understand that this is
not a community prevalence rate. Rather it is the antigen positivity rate of individuals
who were tested in our clinic. It is also important to note that rapid antigen tests, like all
tests, are not 100% accurate.
I declare under penalty of perjury that the foregoing is true and correct. Executed on this 10th of
August 2021 in Austin, Texas.
X
Samuel Thomas Bishop
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