One of former President Donald Trump’s first decisive measures during the early days of the pandemic was his March travel ban on most of Europe, though experts pointed out that it came too late to be effective. With the response to the crisis having been defined by a lack of federal leadership, this early action set the stage for the slew of anti-immigration policies the administration would unroll in the months that followed.
Expelling Asylum-Seekers at the Border: Title 42
In the spring of 2020, ProPublica obtained a Border Patrol memo directing agents to turn asylum-seekers away at the U.S.-Mexico border without offering the migrants the opportunity to make their asylum cases. At the same time, President Trump announced that he was closing the border with Mexico, a closure that was later extended.
The use of a public health emergency to justify immigration restrictions had long been sought by then White House Senior Adviser Stephen Miller, an architect of many of the administration’s harshest immigration policies. One of these policies was the March 2020 CDC order that restricted immigration at the country’s land borders, commonly referred to as Title 42. The policy invoked a section of federal law allowing the government to restrict “the introduction of persons” into the country if there were a danger of spreading a contagious disease.
In 2022, American Oversight obtained emails containing the earliest evidence of Miller’s widely presumed role as the primary coordinator of efforts to invoke Title 42. The communications, from the week before the order’s approval, show Miller’s interagency circle of officials taking part in meetings chaired by Miller about “Covid-19 emergency border planning,” soliciting feedback on the draft order, and celebrating the order’s announcement.
The Biden administration continued Title 42 for more than a year after Trump’s departure from the White House, despite intense scrutiny from lawmakers and human-rights advocates. The order faced challenges in court for violating U.S. asylum law by expelling migrants before screening them for asylum.
In response to our FOIA requests about the policy’s potential safety concerns, American Oversight obtained an August 2021 memo from the DHS Office of Civil Rights and Civil Liberties about “providing medical care and humanitarian protections” to migrants under Title 42. The document is mostly redacted, but it contains some recommendations to Customs and Border Protection, including notifying U.S. Citizenship and Immigration Services if an individual expresses fear that might exempt them from Title 42; taking into account medical conditions and social vulnerabilities like sexual orientation and gender identity; and implementing specific record-keeping procedures. But public reporting on the issue indicates that as of October 2021, few migrants were actually screened for asylum interviews, even with those exemptions.
In March 2022, a federal court ruled that the government may not use Title 42 to send migrant families back to countries where they are in danger of being persecuted, writing that “it’s far from clear that the CDC’s order serves any purpose.” In April, the CDC announced the policy would be lifted the following month, resulting in a number of states asking a federal court to block the administration from ending it. In May, a Trump-appointed federal judge in Louisiana ruled in favor of those states, preventing the administration from lifting the order, likely extending the policy for months.
In August 2022, American Oversight sued the Department of State, the Department of Health and Human Services, and the CDC for email communications about Title 42 and records about the implementation and public health impacts of the policy.
Other Anti-Immigration Restrictions
Other early restrictions by the Trump administration came in April 2020, when Trump suspended immigration for 60 days, blocking green card recipients from moving to the U.S. Those restrictions were expanded that June with bans on multiple categories of foreign workers and immigration visas, which were extended through March 2021 but reversed by the Biden administration that February. Also in June 2020, then-Education Secretary Betsy DeVos issued an emergency rule barring pandemic relief funds from going to foreign and undocumented students, including Dreamers. And two days after July 4 of that year, Immigration and Customs Enforcement released new regulations stating that foreign students must leave the country if their college was operating entirely online come that fall.
American Oversight has been investigating the rationale and implementation of a number of these harsh restrictions, from the expulsion of asylum-seekers to the deportations that helped spread the virus in other countries. We’re also looking into any civil rights complaints filed regarding migrant expulsions under Title 42, as well as the Biden administration’s continuation of the policy after Trump left office. The Biden administration formally ended the program on May 11, 2023.
