It took three doctors, a small team of lawyers and multiple nonprofits on both sides of the border to get an exemption for a Haitian family seeking asylum in the United States.
The family’s 3-year-old daughter suffers from a debilitating skin condition and needs specialty care unavailable to her in Mexico, her lawyers argued.
But standing in their way was Title 42, the health order enacted by President Donald Trump that limits access to asylum at the southern border due to COVID-19 concerns. It gives border officials the authority to turn away asylum seekers without due process, and the discretion to exempt individual migrants on a case-by-case basis. Last week, the CDC announced Title 42 would end May 23.
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Border officials have routinely granted exemptions to Ukrainian nationals while subjecting asylum seekers from other countries to much more scrutiny. That included the Haitian family, who had to wait almost four months to get an exemption.
Advocates said their case underscores just how arbitrary and unfair the country’s asylum system is right now.
“Just taking the case of this family, I think you can see just how difficult it is for Haitians and for other individuals aside from the Ukrainians at this point in time to obtain an exemption from Title 42,” said Blaine Bookey, a lawyer with the Center for Gender and Refugee Studies who helped the Haitian family.
It is rare for Haitian nationals to get Title 42 exemptions. The legal advocacy organization Al Otro Lado has submitted nearly 1,000 requests for Haitians, but only 21 percent have been approved.
The family originally submitted paperwork for a Title 42 exemption in February, with the help of lawyers from Al Otro Lado. The original application included testimony from a doctor about the girl’s skin condition, which is so severe that it covers most of her body and itches so much that she scratches to the point of bleeding.
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That application was denied. As with all Title 42 exemption applications, Customs and Border Protection did not give a reason for the denial, according to Ginger Cline, a lawyer with Al Otro Lado.
“Because we don’t get any information from CBP about what went into their decision or the criteria that they were considering, we don’t really have much insight into how they make those decisions,” Cline said.
This lack of transparency makes it difficult for lawyers to come up with legal strategies to help their clients. The system seems arbitrary. You can submit two very similar applications, but have one denied while another is approved, Cline said.
“Honestly, sometimes it does feel that arbitrary,” she said. “I have really struggled to find much rhyme or reason that goes into the decision making.”
CBP has not responded directly to criticism that their agents’ discretionary powers are being applied in a racist way. Instead, the agency issued a statement saying the Department of Homeland Security continues to ”except particularly vulnerable individuals from Title 42 on a case-by-case basis.”
Bookey with the Center for Gender and Refugee Studies said the arbitrary and discretionary nature of Title 42 makes it an unfair legal process.
“That is certainly not a system based in any sort of consistent application of legal standards or rule of law,” she said.
After the denial, Cline and Bookey submitted another application. This one with another doctor affirming the seriousness of the girl’s medical condition. They also appealed to the Office for Civil Rights and Civil Liberties at the Department of Homeland Security.
Finally, the second application was approved.
The family crossed the San Ysidro port of entry Thursday. But that doesn't mean they will get to stay in the U.S.—it's only the start of a long and complicated legal journey, Bookey said.
“The asylum process is extremely grueling in the United States,” she said.
Unlike criminal court, people in immigration court do not get a public defender. They have the right to an attorney, but only if they can pay for one or find someone to represent them for free.
Therefore, most people end up representing themselves. The majority of cases get denied.
