D.C. Circuit ‘Sort of’ Affirms Title 42 Expulsions

And raises the question of whether DHS should be adjudicating statutory withholding and CAT claims

By Andrew R. Arthur on March 9, 2022

On March 4, the U.S. Court of Appeals for the District of Columbia affirmed DHS’s authority to expel illegal migrants under Title 42 orders issued by the CDC in response to the Covid-19 pandemic. More precisely, it “sort of” affirmed that authority, because it barred expulsions to places where those aliens would be persecuted or tortured. The court’s order raises interesting questions about expedited removal, statutory withholding of removal, and the Convention Against Torture (CAT).

Background on Title 42. Title 42 allows the CDC to prohibit the introduction of persons into the United States to avert the introduction and spread of any communicable disease into the country. CDC has used that authority in response to the Covid-19 pandemic to halt the entry and transmission of the novel coronavirus.

Specifically, on October 13, 2020, CDC issued an order under Title 42 of the U.S. Code “suspending the right to introduce certain persons into the United States from countries where a quarantinable communicable disease [Covid-19] exists”.

That order was substantially the same as others CDC had issued as far back as March 2020, allowing DHS to quickly expel aliens who have entered the United States illegally or sought admission without proper documents at U.S. land borders.

CDC amended that order in a February 2021 notice that created an exception for unaccompanied alien children (UACs), an exception that was included in subsequent CDC orders issued in July and August. Aside from the UAC exception, each of these orders more or less tracked the October 2020 CDC order.

A federal district court judge in Texas enjoined the UAC exception in a recent order, showing that the federal courts can simultaneously giveth and taketh away when it comes to immigration.

D.C. Title 42 Litigation. In September 2021, Judge Emmet Sullivan of the U.S. District Court for the District of Columbia issued an order enjoining Title 42 expulsions, an injunction he stayed for 14 days to allow the government to seek a further stay. The D.C. Circuit granted that stay, pending its further review, which led to the instant order.

The circuit court affirmed DHS’s ability to expel illegal migrants and aliens without proper documents, but it held that the affected aliens could not be expelled to a country in which they would be tortured or persecuted.

Specifically, the court held that Title 42 provided CDC authority to prevent the introduction of aliens into the United States, including aliens who “introduced” themselves by entering illegally (the plaintiffs in the case contended that this authority only applied to “introduction” by common carriers).

The circuit court held, however, that section 241(b)(3) of the Immigration and Nationality Act (INA) bars the executive branch (including DHS) from expelling an alien to a country where the alien would be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion. That provision is known as “statutory withholding of removal”.

It also concluded that CAT prevents DHS from sending an alien to a country in which that alien would be tortured.

Thus, the D.C. Circuit determined, DHS can expel an alien covered by the Title 42 orders, but not to a country where the alien would be subject to persecution or torture.

Here’s the problem: Under current law (as the Center explained in a comment in response to a recent regulatory proposal), only immigration judges can grant statutory withholding or protection under CAT. The D.C. Circuit’s order may thus defeat one of the underlying purposes of the Title 42 orders, which is to limit the period that aliens are held in congregate settings where they may spread Covid-19.

Or it may not. To clarify the question, it is necessary to look at the rest of the INA.

Expedited Removal and Credible Fear. Congress explained how DHS is supposed to process illegal migrants and aliens without proper documents in the expedited removal provision, section 235(b)(1) of the INA. It allows DHS to remove such aliens without obtaining a removal order from an immigration judge.

If, however, an alien subject to expedited removal asks for asylum or asserts a fear of harm if removed from the United States, the alien is sent to an asylum officer at USCIS to determine whether the alien has a “credible fear”, that is whether the alien may be eligible for asylum, statutory withholding, or CAT.

Asylum is similar to statutory withholding, but the burden of proof for asylum is lower: To be granted that protection, an alien must simply show a well-founded fear of persecution if removed, while to receive statutory withholding, the alien must show that it’s more likely than not that he or she would be persecuted if returned.

If an alien receives a positive credible fear determination from an asylum officer, the alien is then placed into regular removal proceedings to apply for asylum, statutory withholding, and/or CAT. Where the alien receives a negative credible fear determination from the asylum officer or an immigration judge, the alien is removed.

It is unclear how many of the more than 2.11 million aliens encountered by CBP at the Southwest border since February 2021 have been subject to expedited removal, nor how many of the 957,000-plus aliens CBP has encountered there who were not expelled under Title 42 since that date have been handled pursuant to section 235(b)(1) of the INA, but it does not appear to be that many.

As of November, half a million aliens CBP encountered at the Southwest border had simply been released (aliens subject to expedited removal are supposed to be detained until they are granted asylum), and DHS made a big splash in July when it announced that it would be resuming expedited removal for “family units” (alien children and accompanying adults).

Normally when processed under expedited removal, aliens are asked whether there is any reason that they don’t want to return home. That is how CBP (primarily Border Patrol agents) know which ones to send to asylum officers for credible fear interviews.

How the D.C. Circuit Order Will Affect Title 42. Most aliens expelled under Title 42 are simply sent back across the border (usually to Mexico). It is unclear whether CBP asks any, most, or all of the aliens to be expelled whether there is a reason that they would not want to go back to Mexico, but under the circuit court’s order, they will probably have to ask now.

That said, it is questionable whether any of those aliens (or at least many who aren’t Mexican nationals) would face persecution on account of race, religion, nationality, membership in a particular social group, or political opinion in Mexico, such that they would be eligible for statutory withholding.

Similarly, it is doubtful that many if any would face “torture” if sent back across the line, either. For purposes of CAT, “Torture is defined, in part, as severe pain or suffering (physical or mental) that is intentionally inflicted by or at the instigation of or with the consent or acquiescence of a public official, or other person acting in an official capacity.”

Many third-country nationals likely fear common criminality (robbery, extortion, assault) in Mexico, but that is not the same as facing persecution or torture as those terms are defined for purposes of statutory withholding or CAT (respectively).

So, CBP will likely have to ask all those facing expulsion under Title 42 if there is a reason that they don’t want to return to Mexico, and many will reply that they are afraid there. Whether CBP sends them to asylum officers for credible fear interviews in lieu of expulsion will be a policy call for the Biden administration, particularly if the fears claimed are based on nothing more than criminal predation.

DHS, Not Immigration Judges, Should Make the Statutory Withholding and CAT Decisions. All of this, however, brings up a point that I have made before in the CAT context. Both CAT and statutory withholding differ from asylum in that the former protections are available only when the alien has been ordered removed, while asylum is a defense against removal.

Asylum is a discretionary form of relief, meaning that even if an alien shows statutory eligibility for asylum, the government can still deny it. That is why the D.C. Circuit held that DHS could expel aliens under Title 42 even if they have asylum claims.

Statutory withholding and CAT focus not on whether the alien is removable (an alien is not eligible for those protections until after the alien has been ordered removed), but where the alien should be removed to. Statutory withholding and CAT are country-specific, so even if removal has been withheld under statutory withholding or CAT to Country X, DHS can still remove the alien to Country Y.

That determination should properly be made by DHS directly before the alien is about to be removed, not by an immigration judge well before the decision to remove the alien is made.

In fact, between November 1994 (when CAT was ratified in the United States) and March 1999 (when regulations were adopted implementing the U.S. law concerning CAT), the former INS made torture decisions, not the immigration court. Nothing suggests that INS agents had any problem doing so.

Many credible fear determinations are made not based on the alien’s eligibility for asylum (which requires proof of persecution on account of one of the five listed grounds), but on CAT. Thus, if an alien claims that he or she would be harmed for reasons other than race, religion, nationality, membership in a particular social group, or political opinion, but the asylum officer believes that the alien nonetheless faces harm, the case will be sent to the immigration court to see whether that harm is “torture” under CAT.

That not only slows down the expedited removal process, but it also clogs up already overburdened immigration court dockets, for little or no reason because most of those cases (in my experience) are denied.

As quickly and easily as the former INS made CAT decisions in the past, CBP officers and Border Patrol agents could make CAT and statutory withholding determinations now. In fact, that is essentially what the D.C. Circuit is telling them to do in Title 42 cases.

Conclusion. The D.C. Circuit has “sort of” affirmed alien expulsions under Title 42. In so doing, it has directed CBP to determine whether aliens are eligible for statutory withholding and CAT. Perhaps, then, DHS should be given full authority to decide whether any alien is eligible for those protections. Doing so would put the “expedited” back into expedited removal and take a huge burden off the immigration courts.