New Numbers on Title 42 (Public Health) Border Expulsions

But CBP still leaves a few questions unanswered

By Andrew R. Arthur on April 15, 2020
  • Last month, CBP utilized its newly granted authority under the health and welfare provisions of Title 42 of the U.S. Code to expel more than 6,000 aliens encountered along the Southwest border to prevent the introduction of the Wuhan virus to the United States.
  • The majority of those expulsions were aliens apprehended by the Border Patrol. During the last 10 days of March, CBP officers only expelled 69 aliens encountered at the Southwestern ports of entry.
  • Border Patrol agents are utilizing portable command stations to process aliens who entered illegally in the field under its Title 42 authority, instead of transporting them to CBP processing centers, to reduce agents' exposure to the virus.
  • 120 UACs who were apprehended were quickly repatriated to El Salvador, Guatemala, and Honduras during a one-week period at the end of March and the beginning of April.
  • There are exceptions to Title 42 expulsions based on unspecified law enforcement, officer and public safety, humanitarian, or public health interests.

On April 9, U.S. Customs and Border Protection (CBP) issued its latest statistics on the number of border apprehensions for March, with a twist: It includes both aliens who are removable under Title 8 of the United States Code (USC) — that is the Immigration and Nationality Act — as well as alien expulsions under Title 42 of the USC, which deals with Public Health and Welfare.

Why is this notable? As I explained in an April 10 post, the federal government is using the authority Congress provided to the Department of Health and Human Services (HHS) under Title 42 to restrict — through expulsion — the introduction of foreign nationals to the United States at the border. In particular, CBP is relying on the broad authority granted HHS under 42 U.S.C. § 265: "Suspension of entries and imports from designated places to prevent spread of communicable diseases".

Under that authority, on March 20, the president announced that the government would:

[E]xpeditiously return aliens who cross between ports of entry or are otherwise not allowed to enter the country, as the facilities in which these aliens would normally be held cannot support quarantine for the time needed to assess potential cases.

CBP makes clear that: "Expulsions under Title 42 are not based on immigration status and are tracked separately from immigration enforcement actions, such as apprehension or inadmissibility, that are regularly reported by CBP." That said, the individuals can only be foreign nationals (U.S. citizens have an "absolute right to enter" the borders of the United States), and the president's Title 42 order expressly excludes lawful permanent residents and those aliens with lawful travel documents.

With respect to the numbers, 23,647 aliens were apprehended by the Border Patrol at the Southwest border in March, and 3,915 aliens were deemed inadmissible at the ports there by CBP officers, under the apprehension and removal authorities in the INA. In addition, last month, 6,306 aliens were expelled by Border Patrol agents under Title 42, and 69 aliens who presented themselves at the ports of entry were expelled by CBP officers pursuant to that authority.

As I have previously reported, apprehensions along the Southwest border were down to 4,200 per week by the first week of April, a trend that had likely been on the downturn as the U.S. economy was largely shuttered in March due to the Wuhan virus. That would suggest that the 6,306 aliens who were expelled by Border Patrol under Title 42 represented all, or at least the vast majority, of the aliens whom it encountered between March 21 and March 31.

The interesting statistic is the low number of aliens expelled by CBP officers at the Southwest ports of entry pursuant to Title 42. Either relatively few aliens opted to present themselves at those ports following the president's announcement; or the majority of those removed at the ports were Mexican nationals (who can simply be denied entry and return — or be returned — to Mexico under the INA); or there were some number of foreign nationals who were not from Mexico (OTMs) whom CBP opted to place into expedited removal under the INA in lieu of expulsion.

CBP provides a significant narrative with its statistics to distinguish the Title 42 cases from the INA cases — which in the interest of brevity I will not excerpt in full — but one particular passage bears examination:

To help prevent the introduction of COVID-19 into border facilities and into the United States, persons subject to the order will not be held in congregate areas for processing and instead will immediately be expelled to their country of last transit. In the event a person cannot be returned to the country of last transit, CBP works with interagency partners to secure expulsion to the person's country of origin and hold[s] the person for the shortest time possible. This order does not apply to persons who should be excepted based on considerations of law enforcement, officer and public safety, humanitarian, or public health interests.

There are three points here. First, CBP as a rule is not transporting large groups of apprehended aliens to its holding facilities for processing (I reported last week that the agency then only had about 100 aliens in its custody). CBP has explained:

Since March 14, the U.S. Border Patrol has utilized portable command stations to process illegal border crossers in the field. Enacted under Title 42, this system expeditiously expels certain border crossers through ports of entry, eliminating the need to transport people to U.S. Customs and Border Protection facilities, reducing possible exposures to illness.

I have previously reported that as a result of such measures, return times for apprehended aliens back across the border are down to 96 minutes.

Second, CBP is working with its "interagency partners" (putatively U.S. Immigration and Customs Enforcement (ICE) and the State Department) to briefly detain aliens who cannot simply be sent back across the border (likely all OTMs) in order to obtain the documents needed to return them back home. It is not clear why Mexico will not accept those migrants, given the fact that the White House press release suggests that it had reached an agreement with Mexico to accept OTMs who had sought or attempted entry from its territory.

I will note, however, that some of those aliens are unaccompanied alien children (UACs) who are being repatriated. News reports last week indicated that from March 27 to April 2, 120 UACs "were quickly sent on planes back to Guatemala, Honduras and El Salvador." There are strong arguments for CBP not to return OTM UACs (particularly those of tender years) back across the border in accordance with the Title 42 authority, but to return them to family abroad under that authority instead.

Other OTMs who are being repatriated could have criminal records that would give Mexican authorities grounds not to accept them. That, however, is at best an educated guess, but I can imagine that the Mexican government has enough on its hands in dealing with the virus and would not want to have to deal with the additional burden of keeping tracking of OTMs who have committed serious crimes.

The third, and most interesting point, however, is CBP's reference to the fact that there are exceptions to the Title 42 expulsion rule "based on considerations of law enforcement, officer and public safety, humanitarian, or public health interests."

"Law enforcement" interests would logically pertain to aliens apprehended by CBP who have criminal warrants in the United States for which they would be held; who were encountered by the agency committing crimes other than illegal entry (such as drug smuggling); or are witnesses in other federal prosecutions.

For example, on Monday Border Patrol agents from the Laredo sector foiled a smuggling attempt involving 28 aliens from Mexico, Guatemala, and Ecuador, all of whom were in the United States illegally. CBP reports: "The individuals and the driver, a U.S. citizen, were taken into custody pending investigation." Some if not all of those aliens would be detained as witnesses in the federal smuggling case against the alleged smuggler.

"[P]ublic health interests" would include aliens who, when apprehended, had injuries or who were sick and required hospitalization in the United States. For instance, last Thursday, according to CBP, Border Patrol agents from the McAllen Station were following a group of aliens when one suffered a head injury, which resulted in his local hospitalization.

"Humanitarian" interests could apply to Mexican nationals who were determined to have valid claims of fear in Mexico, as well as OTMs with fear in both Mexico and in their home countries. This would suggest that CBP continues to do credible fear screening even notwithstanding the broad authority in Title 42, and that truly meritorious cases are being processed under the INA.

The exception to the Title 42 expulsion rule for "officer and public safety" reasons, however, is not clear. My best guess is that this would apply to aliens who are apprehended in remote areas far from the closest port of entry, but closer to either a CBP processing center or ICE detention. In those cases, transport for processing and detention would prevent prolonged exposure to a migrant who could be carrying the Wuhan virus, but I am sure that this is not the only scenario that this exception would cover.

In any event, the combined total of apprehensions (both under Title 42 and the INA) last month was 29,953, down slightly from February when Border Patrol made 30,074 apprehensions along the Southwest border. The combined total number of aliens deemed inadmissible, however, was off significantly: 3,984 at the ports along the Southwest border in March, as opposed to 6,440 in February, a 38-percent decrease.

This suggests that aliens who are attempting to enter the United States are avoiding the ports (where quick return is likely) for the much riskier option of entering illegally and hoping to avoid detection. In addition, given the fact that illegal entry generally trends up most years in March (2017, just after the inauguration of Donald Trump, was an outlier), these statistics indicate that the total number of aliens attempting to enter illegally or without valid documents will be much lower in FY 2020 than they were during the humanitarian and national-security disaster at the Southwest border in FY 2019.