Why Biden's ICE Is Still Deporting People

Trump used an obscure public health rule that dates back to the 1940s to deport migrant children. Biden hasn't repealed it.
February 12, 2021, 3:12pm
Haitians arrive in Port-au-Prince, Haiti after a deportation flight from the United States in Port-au-Prince, Haiti on May 26, 2020.
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A series that explores what parts of Trump’s legacy will be lasting, and what parts can be quickly undone by a new administration.

In the morning of Thursday, February 11, an Swift Air charter plane flew from an ICE detention center in El Paso, made a stop in Miami, and finally landed in Port-au-Prince, Haiti, carrying a group of Haitian asylum seekers. Two more removal flights landed in Haiti that day, including one that had been delayed in Laredo overnight. Another flight had landed on Tuesday, and another the day before that. A sixth flight is scheduled to arrive Friday.

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At least 50 removal flights have taken off in total since Biden took office, according to Tom Cartwright, whose group Witness at the Border tracks deportation flights.  

On the second day of his term, Biden declared a “pause” on certain deportations for 100 days. That moratorium was blocked by a Trump-appointed judge in Texas, who this week extended the temporary restraining order for another 14 days. 

But even if the moratorium had stayed in place, the flights to Haiti and other countries like El Salvador, Ecuador, Guatemala, and Honduras, would still have gone ahead, because Biden has not reversed a Trump-era policy that used an obscure public health rule to effectively close the southern border to asylum seekers.

Title 42 is a previously little-used public-health rule that dates to the 1940s. The 1944 Public Health Service Act gave the Surgeon General (later the secretary of Health and Human Services) the power to suspend entry of people or goods to the U.S. for public-health reasons. The 1944 law was preceded by a 1892 law designed to target cholera and yellow fever, and it was expressly written to apply to all travelers, citizens and non-citizens alike. 

The Trump administration revived the law with a new interpretation: to give Border Patrol officers the right to turn away non-citizens approaching the borders with Mexico and Canada, even asylum seekers and unaccompanied children, under the guise of keeping out the coronavirus. Migrants expelled under the regulation are not booked into the immigration system, but instead are kept in holding cells for up to several days until they are released into Mexico, or put on a flight to their home country. 

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Biden’s “pause” only applied to migrants who have orders of removal and thus are already slated for deportation pending any immigration appeals. People expelled under Title 42 don’t fall under that category, since they never made it far enough into the immigration system to receive an alien number, or a credible fear interview, let alone a removal order from a judge. Most of the people on the flights to Haiti were Title 42 expulsions, according to DHS. 

CBP turned away 395,128 migrants and asylum seekers from the southern border in 2020 under Title 42. Another 64,136 were expelled in January of this year alone.  

On Wednesday, White House Press Secretary Jen Psaki confirmed that Title 42 would continue to be invoked. “The vast majority of people will be turned away,” Psaki said during a briefing. “Asylum processes at the border will not occur immediately; it will take time to implement.”

The number of people approaching the southern border was up 6 percent in January, according to CBP. There are over a million pending asylum cases, according to Syracuse University’s TRAC database, a backlog that grew during the Trump administration. 

The ACLU has sued under multiple lawsuits to block Title 42 for children and families. In one D.C. court, it won a temporary injunction that would allow unaccompanied children to enter the U.S. and claim asylum—until an appeals court struck that down, allowing expulsions of children to continue. 

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It wasn’t until Thursday that the CDC issued an order stating that unaccompanied children had been exempt since January 30, the day after the appeals court ruled that they were allowed to expel kids. Families are not exempt, however, and advocates have reported removals of children this week. 

The order is temporary, and the Biden administration—now a defendant in the lawsuit—will have to decide whether to keep defending the use of Title 42 against families.

Lee Gelernt, the ACLU’s lead attorney suing the government over Title 42, called the policy “unlawful and inhumane.”

“For those looking to assess how far the Biden administration is prepared to abandon the prior administration’s horrific asylum policies, the Title 42 policy and the ongoing litigation challenging the policy is where to focus,” he said. 

Despite the CDC’s order, conditions on the ground remain confusing, with some border patrol officials continuing to stop children from entering, according to Jennifer Podkul, Vice President for Policy and Advocacy at KIND, which monitors children crossing the border. 

“We’re terrified about what is happening to kids right now.”

“We’re terrified about what is happening to kids right now,” she said. 

Even if unaccompanied children are exempt from Title 42, meaning they can claim asylum in the U.S., Podkul and other advocates are concerned about repercussions for families attempting to cross, who may decide to send children across the border alone. “We don’t want there to be any sort of incentive that they’d be willing to send their children ahead to keep them safe,” says Podkul.

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This week, a new CBP processing facility opened in Donna, Texas. A tent city for unaccompanied children is planned for Carrizo Springs, Texas.

Biden has reversed some of Trump’s nearly 5,000 changes to the immigration system. On the first day of his term, h signed an order to preserve DACA, or Deferred Action for Childhood Arrivals, the Obama-era program that granted deportation relief to undocumented people brought to the U.S. as children, that Trump sought to undo. Biden halted construction of the border wall, and also announced he will stop enrolling asylum seekers in the Remain in Mexico program, which forced them to await the processing of their asylum claim in Mexico, and Friday announced plans to begin slowly admitting asylum seekers who have been waiting for months. 

Those changes were welcome, but Podkul said, “it doesn’t convert to a change in policy at the border as long as Title 42 is still in place.”

Back in May of 2020, dozens of health professionals signed onto a letter stating that there was no disease-prevention benefit to the rule, which was “being used to target certain classes of noncitizens rather than to protect public health.”

That this move was a thinly veiled way to implement immigration policy under the guise of public health was made more clear by a leaked CBP memo on how to implement the new policy, which gave border patrol agents wide latitude to expel any noncitizen they encountered. As the government cites public health to keep out undocumented inmmigrants, people actually do cross the southern border all the time. Over 13 million non-immigration-related border crossings—including bus, train, and car passengers; commercial trucks; and pedestrians—took place at the southern border in December 2020 alone. 

 “Expelling people under Title 42 is a ruse,” says Guerline Jozef, executive director of the Haitian Bridge Alliance. “There is no reason that the United States of America cannot facilitate a process to get these people to safety. No more excuses. This needs to happen now.”