Statutes of Liberty: No One Gets In — Coronavirus Authority Used to Exclude Asylum Seekers at the U.S. Border

This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

For the Trump Administration, asylum claims at the border are a problem. Title 42 is the new solution.

What’s the problem? When an asylum seeker arrives at the border and claims that she is fleeing persecution, she has the right, under U.S. law, to have her claims heard before a fair and impartial adjudicator. Unfortunately, the United States lacks the ability to house asylum seekers in decent conditions for the amount of time that this adjudication requires.

Therefore, asylum seekers are routinely released into the interior of the United States to have their claims heard at other Immigration Courts — including our own local Immigration Court in Crystal City.

What’s the solution? Title 42, United States Code. Title 42 empowers the President to take actions to protect public health, and, under color of Title 42, U.S. Customs and Border Protection (CBP) is expelling immigrants on the basis of the COVID-19 pandemic. Attorneys like ourselves are calling these proceedings Title 42 proceedings to distinguish them from ordinary immigration proceedings under Title 8.

Beginning on March 21, 2020, the Trump Administration invoked its powers under Title 42 to expel immigrants who arrive at U.S. land borders, arguing that allowing immigrants to enter through the U.S. border increases the risk of introducing more COVID-19 cases into the United States.

According to CBP, “persons subject to the order… will be immediately 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 the person for the shortest time possible.” Some sources say that the expulsion procedure takes an average of 96 minutes.

CBP claims that there will be exceptions for humanitarian reasons. However, based on our recent experience with this relatively unknown procedure, we learned firsthand that CBP may not be properly taking humanitarian factors into consideration when determining whether to expel a person at the border.

Just a couple of weeks ago, our office learned that CBP had detained two unaccompanied minors in Texas. These children did everything they were supposed to do — they did not sign any documents allowing for their return to their country, they expressed that they were afraid to return to their country, and asked to speak with an asylum officer.

However, the immigration authorities did not listen and said that unless they got a lawyer, they would be put on a plane and sent back to their country. They were also not allowed to tell their family members where they were.

Our office stepped in to try to save these children from being expelled. Sadly, it took our office’s intervention and insistence that these children feared persecution and torture in their home country to convince CBP to take these children out of Title 42 proceedings and place them into regular immigration proceedings.

Unfortunately, this seems par for the course. Some of our readers may have read about ICE detaining children at a hotel in McAllen, Texas. It took a lawsuit to get these children out of the hotel and into regular immigration proceedings.

Many advocates believe that these Title 42 proceedings are illegal and violate our obligations under international human rights treaties, which Congress and Presidents past also enacted into U.S. law. On August 14, 2020, various nonprofit organizations sued the Trump Administration over these Title 42 proceedings, arguing that these proceedings violate various laws and deny asylum seekers a meaningful opportunity to apply for asylum in the United States.

The legality of these proceedings is in dispute. Our experience suggests that the Trump Administration knows that it is taking an aggressive approach which will be hard to defend in court. It is a bedrock principle of American law that the identity of the speaker does not matter. A pro se litigant’s request for asylum should not be ignored simply because she does not have a lawyer.

Our clients were ignored until we intervened. CBP’s response to unrepresented immigrants violates the right to due process enjoyed by all litigants in our legal system, whether represented or pro se.

This is a topic we will follow closely and we will report back with updates. We welcome your thoughts and comments and will do our best to respond.