The CDC order is designed to accomplish under the guise of public health a dismantling of legal protections governing border arrivals that the Trump administration has been unable to achieve under the immigration laws. Lucas Guttentag, Just Security
Between October 5th and October 20th, ICE Air Operations flew 10 “deportation” flights to Haiti. All except one flight departed from Laredo, Texas, the other left from Brownsville. From April of this year, until late September, ICE deportation flights to Haiti occurred about once every other week. These flights were rarely full – though confirmation of numbers is never available from ICE. So, what happened?
Over the last two weeks, what we’ve seen are not deportations in the regular sense. If someone is deported that is the last step in a series of activities after a person has been deemed removable from the interior, or inadmissible at the border. In other words, prior to a deportation there is a process within which one can fight for asylum, or against removal on other grounds. These processes have many problems, but there is nevertheless an opportunity to present evidence and seek relief from removal prior to a deportation.
What we have been seeing over the last two weeks is something different. These flights are part of a different program involving the summary expulsion of people; none of whom have had any realistic chance to apply for asylum. They have been apprehended by Border Patrol and then quickly removed.
The basis for these removals is a March 20, 2020 order issued by the Centers for Disease Control and Prevention that effectively closes the border to all non-essential travel, claiming authority under Title 42 of the Public Health Services Law. These “Title 42” removals have been ongoing since March, leading to the expulsion of 200,000 people (data accessed Oct. 22). Under the provisions of the order, people are removed immediately to the last country of transit (for 99% of people apprehended this is Mexico), or sent to their home country if Mexico can’t (or won’t) receive them. According to the administration, 90% of the people apprehended at the border are expelled within 2 hours.
When the order was issued, Mexico said that it would only accept people expelled if they were Mexican nationals, or from Honduras, Guatemala or El Salvador. This means people from elsewhere, eg., Haiti, Cuba, Venezuela, Pakistan, Cameroon, etc. could not simply be turned back to Mexico (though no doubt many have been anyway). What has happened to them?
There has not been much information about this. From advocates we know who are working with Haitian migrants, people being detained while awaiting their Title 42 expulsion are not given an Alien (“A”) number like someone officially detained. Which means they can’t be tracked. As a result it is difficult to get a good picture of where people are being held. From press reports we know that some families and unaccompanied children have been placed in hotels until they can be flown out. Over the last two weeks we heard that many of the people from Haiti who were being expelled were being held at an ICE facility in Val Verde County, not far from Laredo where most of the flights departed from. Neither of these locations comports with the CDC guidance on temporary detention for those who can not be immediately expelled. Such detention is supposed to be in a designated space within a Border Patrol facility, or under a tent or other soft-sided shelter (e.g. temporary facility to minimize contact).
The recent increase in expulsions to Haiti is also related to a recent increase in the number of Haitians being apprehended by Border Patrol. The Customs and Border Patrol media office for the Del Rio sector issued a release on Monday saying that 1,800 people from 26 different countries had been arrested over a two week period, 25% (450) of them were from Haiti. I have not been able to confirm numbers from other sectors, but it seems likely that the number of people who are attempting entry is increasing rapidly across the board as borders south of Mexico have begun to open again. Border Patrol apprehensions totaled 54,711 in September (48,327 were Title 42 expulsions). I requested information from the CBP media office in the Del Rio sector concerning where people were being held and if they were being tested for COVID, and received no response.
So, what we have been seeing over the past two weeks is the mass expulsion of Haitians under Title 42. Most of this increase in removals seems to be the result of increased border crossings, though it is possible some families and unaccompanied children who have been detained for longer periods are also part of the increased expulsions.
Title 42 went into effect as a 30 day measure, but has been renewed indefinitely. It is important to point out that it was also NOT an initiative of the CDC. The order was the brainchild of Steven Miller, Trump’s hardline immigration advisor. CDC officials initially refused to implement it, saying there was no public health justification for such an extreme measure – though they ultimately went along with it under pressure from the White House. What is clear is that Trump has used COVID-19 to do what courts had previously denied him: blocking asylum, even for people already on U.S. soil. The hundreds of expulsions to Haiti last week were the result of this policy, along with 200,000 other people removed under this order since March.