Biden Has Outpaced Trump’s Use of Title 42 to Expel Asylum Seekers

“We didn’t know we were being deported,” said Cinthia* as she walked toward a bus headed to Honduras. The 24-year-old fled violence and threats in San Pedro Sula, Honduras, earlier this year. She made it 1,500 miles north through Guatemala and Mexico and across the U.S. border into Texas, where she planned to request asylum. Instead, the U.S. summarily expelled her on a flight from McAllen, Texas, to southern Mexico, and Mexico then sent her overland to El Ceibo, a remote border crossing with Guatemala.

“They never allowed me to say why I left,” Cinthia said of U.S. border and immigration officials. “They just told us to get on.” Cinthia and other Hondurans expelled by the U.S. with whom Truthout spoke as they walked over the border from Mexico into Guatemala said they were not told where they were going until they landed in Villahermosa, Mexico, the Tabasco state capital. Some had heard rumors they were being flown to a shelter in another part of the U.S.

In the past two months, more than 14,000 Central American migrants and asylum seekers have been expelled and deported over the El Ceibo border crossing, according to the Guatemalan Immigration Institute. More than 70 percent have been Honduran, as for the past month and a half, Guatemalans have been sent back over a different border crossing. Thousands were detained in different parts of Mexico and deported via El Ceibo. Thousands of others, including Cinthia, were subject to a sort of chain expulsion: summarily expelled by the U.S. on daily flights to southern Mexico and then bused by Mexico back to Central America.

The expulsions through Mexico are the latest iteration of U.S. policies and practices blocking people from seeking asylum that started under former President Donald Trump and have continued under President Joe Biden. Over the past three years, migrants and asylum seekers from northern Central America have been subject to diverse restrictions on asylum: expedited removals, summary expulsions, the “Remain in Mexico” policy and a so-called “safe third country” agreement with Guatemala. The expulsions through El Ceibo are carried out under Title 42, a public health order the U.S. has been using during the COVID-19 pandemic to summarily expel migrants and asylum seekers at the U.S. southern border.

Trump’s administration invoked Title 42 last year, shortly after the World Health Organization declared COVID-19 a pandemic. Based on a seldom-used part of 1940s health legislation, Title 42 confers authority for emergency action to address health risks associated with entry into the country of people, regardless of citizenship. On March 20, 2020, the Centers for Disease Control and Prevention issued an order “suspending the right to introduce certain persons where a quarantinable communicable disease exists.” The order applies to entry overland from Mexico or Canada to people “who would otherwise be introduced into a congregate setting,” and authorizes their expulsion either to the country they last transited — Mexico, in the vast majority of cases — or to their country of origin. U.S. citizens are exempt.

In practice, the U.S. has been using the order to circumvent processing and screening, prevent asylum claims, and summarily expel migrants and would-be asylum seekers. There have been more than 1.1 million Title 42 expulsions, though some people have been expelled multiple times within that total. Migrant rights advocates had hoped the Biden administration would ditch the practice, but its use has only increased. In Biden’s first seven full months in office, from February through August 2021, the U.S. Border Patrol registered 690,209 Title 42 expulsions at the U.S. southern border — more than 1.8 times the number of expulsions in 10 months last year, from March through December 2020, under Trump.

“It does seem like Biden’s inner circle or administration is sticking to their guns on this,” said Yael Schacher, senior U.S. advocate at Refugees International, a humanitarian and advocacy group based in Washington, D.C. “Personally, I think it’s because they don’t quite have a plan for how to process people.”

Rights groups challenged the legality of Title 42 expulsions in court, and in late September, a federal court judge sided with them. The judge issued an injunction against the government regarding the expulsion of families with children but did not put it into effect immediately, giving the Biden administration a grace period to appeal, which it has. Then on October 2, Harold Koh, a senior State Department adviser who had already planned to leave government, used his resignation to publicly condemn the administration for its treatment of thousands of Haitian migrants and asylum seekers, calling their expulsions under Title 42 illegal. The Biden administration stood its ground in court and in public statements responding to Koh.

“They’ve been consistently misportraying what Title 42 is,” Schacher told Truthout. “[White House Press Secretary Jen] Psaki responded to Koh’s legal rebuke of Title 42 by basically misrepresenting how many people pass through screening, saying these screenings were available, when in fact, they’re not really available to most people.”

“So much of the focus has been on whether [the expulsions] are justified on health grounds, rather than, ‘Where are we sending people?’” she said. With Haiti, that issue has been at the forefront, given the recent Temporary Protected Status designation, massive earthquake and violent political turmoil. When the Trump administration implemented an asylum cooperation agreement with Guatemala, deporting Hondurans and Salvadorans to the country to seek asylum, there was significant U.S. attention and activism on the serious insecurity and dangers people were being sent back to, said Schacher. Thousands of Central Americans are being expelled to Guatemala now, though, and “that hasn’t gotten much attention” because of the overwhelming focus on the health grounds.

Migrant advocacy and human rights groups throughout Guatemala and Mexico have been speaking out against Title 42 expulsions since they first began. International agencies have also condemned the phenomenon for violating international law. In May, Filippo Grandi, the United Nations high commissioner for refugees (UNHCR), called on the U.S. “to swiftly lift the public health-related asylum restrictions that remain in effect at the border and to restore access to asylum for the people whose lives depend on it.” The UN agency reiterated its appeal in August, in response to the expulsions to southern Mexico and overland into Guatemala.

“These expulsion flights of non-Mexicans to the deep interior of Mexico constitute a troubling new dimension in enforcement of the COVID-related public health order known as Title 42,” Matthew Reynolds, UNHCR representative to the U.S. and the Caribbean, said in a public statement. “Removal from the U.S. to southern Mexico, outside any official transfer agreement with appropriate legal standards, increases the risk of chain refoulement — pushbacks by successive countries — of vulnerable people in danger.”

Truthout asked U.S. and Mexican officials whether or not there were any written agreements or memorandums of understanding between the two countries or with Guatemala concerning the chain expulsions but was unable to obtain a response. Guatemala’s Ministry of Foreign Affairs, though, confirmed Guatemala does not have any. “No document exists in this regard. Only verbal agreements,” a ministry spokesperson told Truthout.

On the Mexican side of the El Ceibo border crossing, buses contracted by Mexico’s National Immigration Institute were already lined up waiting by midday on September 20. By mid-afternoon, immigration vans and buses began arriving from Villahermosa with the passengers of the U.S. Title 42 expulsion flight from Texas and people detained in different parts of Mexico. Once everyone had arrived to the Mexican side of the border, Guatemalan police and immigration and officials got into place. The first contracted bus in waiting was sent over, and Mexican police closed the vehicle gate across the road behind it to prevent anyone from returning to the Mexican side.

Migrants and asylum seekers were sent back a few dozen at a time by Mexico through the passenger tunnel into Guatemala, where immigration officials ushered them in single file across the road. Another official was keeping count. A few Guatemalan border police stood spaced out off to the side, ensuring people stayed in line and did not try to climb a nearby embankment. The only assistance was provided by nuns and local migrant shelter workers and volunteers who handed people drinks, snacks, hygiene supplies and clothing donations as they boarded the bus. Once full, the bus pulled ahead to wait for the others, and the whole process was repeated. In roughly an hour, Truthout watched as hundreds of Central Americans were ushered onto eight buses that departed as a caravan, headed to Corinto, a border crossing with Honduras 280 miles away. According to the Guatemalan Immigration Institute, 278 Hondurans (including 80 minors) and 17 Salvadorans were sent back at El Ceibo that day.

When the expulsions at El Ceibo began in August, people were sent across the border and abandoned. The Guatemalan government publicly stated it had received no prior warning from Mexico or the U.S. and pushed back. A small Guatemalan border village, El Ceibo has few services. It is in a remote area along drug trafficking routes and criminal groups on both sides of the border often prey on migrants. The local Catholic church-affiliated migrant shelter has a capacity to shelter 30 people, reduced to 15 during the pandemic. Shelter workers and volunteers scrambled to house, feed, and provide other assistance to as many of the hundreds of migrants and asylum seekers being sent back every day as they could.

“We prioritized women and families,” said Juan Pablo Saquí, spokesperson for the local migrant shelter, Casa del Migrante del Belén. “We tried to follow biosecurity protocols but the situation was dire,” he told Truthout in the small shelter up on a steep hill. Sometimes the shelter provided aid to 200 people and no other institution, governmental or otherwise, was providing any. After the situation was covered by Guatemalan media, some institutions began showing up, said Saquí, and eventually the buses were coordinated to take people directly from El Ceibo to Honduras.

It is unclear how many Central Americans have been subject to the U.S. Title 42 expulsions by way of the flights to southern Mexico and subsequent expulsion to Guatemala. The Guatemalan Immigration Institute has been keeping track of overall totals at El Ceibo since August 22 and frequently shares updates with journalists, but does not have disaggregated data distinguishing between people expelled by the U.S. and those detained in Mexico. Overall, 14,108 people, more than a quarter of whom have been minors, were expelled and deported over the El Ceibo crossing between August 22 and October 11, according to the Guatemalan Immigration Institute. More than 70 percent (10,276 people) were Honduran and just over 15 percent (2,210 people) were Salvadoran. Early on, 1,445 Guatemalans were sent back via El Ceibo, as were 159 Nicaraguans and 18 other people of different nationalities. Guatemala did not keep track of people expelled into the country over other border crossings from the southern Mexican state of Chiapas.

Truthout asked Mexican and U.S. officials a series of questions with the express aim of determining how many of the people expelled and deported at the El Ceibo crossing — whether in total, in September, or even just on September 20 and 21, when Truthout was at the border — had first been flown down from the U.S. to Villahermosa. Mexico’s National Immigration Institute did not provide a response by time of publication, and neither did the U.S. Department of Homeland Security (DHS), despite follow-up emails and deadline extensions. The department presumably internally forwarded the request to Immigration and Customs Enforcement officials, who indicated to Truthout three days later that people were being sent back under Title 42 and the request should therefore be directed to DHS or Customs and Border Protection. (Truthout’s request was clearly and explicitly about the use of Title 42 and was directed to DHS in the first place.) Truthout then followed up October 12 directly with DHS to reiterate the request but did not receive a response by time of publication.

Once-a-day flights from McAllen, Texas, to Villahermosa, Tabasco, Mexico, are ongoing. The expulsion flights are contracted out to World Atlantic Airlines, a Florida-based charter airline company. World Atlantic Airlines’ fleet is comprised of seven McDonnell Douglas 80 Series planes with total passenger capacities between 146 and 155, according to the company’s website. Expulsion flights from McAllen to Tapachula, Chiapas, Mexico, are less frequent, on Boeing 737s, and are contracted to iAero Airways, formerly Swift Air. For the past three weeks, there have been Monday, Tuesday and Wednesday flights on Boeing 737s from McAllen to Tapachula.

It is unlikely flights have been at full capacity, but if they were, more than 10,000 Central Americans would have been expelled under Title 42 via southern Mexico over a span of two months. Direct flights have also skyrocketed. In September, 3,354 Guatemalans were expelled under Title 42 and/or deported on 34 U.S. flights to Guatemala City. That is more than the total from January through August, and flights are only increasing. From October 4 to 15 alone, there were 24 such flights scheduled, according to the Guatemalan Immigration Institute.

Back at the El Ceibo border crossing, Oscar* and his partner Amy* were exhausted as they walked into Guatemala with their 1-year-old daughter on September 21. The young family left Catacamas, their hometown in eastern Honduras, in mid-August. “We didn’t have any work, and the government never does anything for the people,” Oscar told Truthout.

The couple knew about Title 42 expulsions but had heard they were no longer happening. “We made it to Texas quite confident,” said Oscar. Once they were boarded onto the plane to Villahermosa, though, it became clear to the family they had received false information. “It wasn’t true,” said Oscar, who is unsure what he will do now. He put his home up as collateral on a loan the family used to make the journey north, and the money is long gone.

“Now I have nothing,” he said, advancing in line to get onto the bus to Honduras. “I think I will try again.”

* Cinthia, Oscar and Amy’s last names have been omitted to protect their identities for security reasons.