Mass Deportations: Breaking Down the Legal Concepts (Part II)
By Becki Young, Managing Partner
This is Part Two of a three-part blog series explaining some of the basic legal ideas behind the mass deportations promised by the Trump administration.
Part One looked at the two main government agencies involved in removing people from the U.S.:
- CBP (Customs and Border Protection)
- ICE (Immigration and Customs Enforcement)
It also explained the difference between:
- Criminal and non-criminal arrests, and
- Arrests vs. deportations (also called removals)
Part Two (this post) looks at what CBP does in the process of removing someone from the U.S.
Part Three will focus on the role of ICE in the removal process.
CBP: At the Border
CBP agents work at or near the U.S. border and at ports of entry (places where people and goods are allowed to legally enter the country). Ports of entry include international airports, land border crossings on the northern and southern borders, and seaports.
If a foreign national comes to the U.S. border and encounters CBP, several things could happen:
- Admission – If the person has the right documents (like a valid visa or passport), they should be allowed to enter the U.S.
- Parole – They might be allowed to enter the U.S. temporarily for urgent reasons or public benefit, even if they do not have the usual documents. For example, a foreign national might in limited circumstances (i.e., a permanent resident alleged to have abandoned their green card) be paroled into the U.S. to pursue the immigration court process.
- Detention – If they say they are afraid to return to their home country, they may be held in detention while they wait for an immigration court hearing.
- Expedited Removal – If they do not have proper documents and do not qualify to stay, they may be sent back to their home country without a full court hearing and will likely be detained until they are removed.
CBP agents use different methods to stop foreign nationals from entering the U.S. if they cannot be lawfully admitted, or to remove them if they are already here without permission.
Expedited Removal
One method of removing foreign nationals from the U.S. is called “expedited removal,” which means quickly removing someone from the country without providing them an opportunity to have their case heard in immigration court. Traditionally, expedited removal has been done only by CBP (not ICE) either at a port of entry, or near the border. However, the government recently gave ICE the authority to remove foreign nationals via expedited removal, which will be covered in our next blog.
Most often, CBP uses expedited removal for people who cross the border in places that are not official entry points and who are caught within 100 miles of the border and within 14 days of arriving in the U.S.
CBP can also use expedited removal if someone shows up at an official port of entry but does not have the right documents — for example, if they have no documents or fake documents).
Withdrawing an Application for Admission
Sometimes, instead of removing a foreign national from the U.S., CBP lets the person take back their request to enter the country. This is called “withdrawing their application for admission.” This usually happens when the person has valid documents, but CBP does not believe they meet the requirements for the type of immigration status they are requesting.
Title 42 Expulsions
From March 21, 2020, to May 11, 2023, CBP used a rule called Title 42 to quickly remove foreign nationals from the U.S. News reports indicate these Title 42 expulsions may begin again soon.
Title 42 started during the COVID-19 pandemic when the Centers for Disease Control and Prevention (CDC), under the Trump administration, said it was needed to protect public health. The Biden administration initially continued Title 42 expulsions before it terminated the program at the end of the COVID-19 national emergency.
A Title 42 expulsion is not legally considered a deportation. It does not have the same legal consequences as being officially deported.
Asylum / Credible Fear Interview
Over the course of our nation’s history, many foreign nationals have come here looking for freedom and safety from harm. Under international law, a person has the right to ask for asylum if they have experienced persecution or have a well-founded fear of persecution in their home country on account of race, religion, nationality, membership in a particular social group, or political opinion.
International law says that governments cannot send people back to countries where they face persecution.
To decide if someone should be allowed to stay in the U.S. and apply for asylum instead of being removed, CBP has usually given them something called a Credible Fear Interview (CFI). This happens when a person says they are afraid to return to their home country. The CFI helps determine if there is a significant possibility that they could establish eligibility for asylum or another kind of humanitarian protection.
Right now, the U.S. government has effectively suspended asylum requests at the southern border[1] under an Executive Order called “Protecting the American People Against Invasion.” [2] This is being challenged in court.
People may still be able to ask for asylum at the northern border with Canada — but only in limited situations where they can show they merit an exemption from the Safe Third Country Agreement (STCA) between the U.S. and Canada. This agreement says that people who arrive in Canada should ask for asylum there. If they try to cross into the U.S. instead, they can be sent back to Canada.[3]
Detention vs Parole
If someone is allowed to enter the U.S. to pursue humanitarian protection (asylum) they may be paroled into the U.S. or they may be detained.
People who express a fear of returning to their home country when they arrive at the border are legally subject to mandatory detention. This type of detention is civil, not criminal, so it is different from being put in jail for breaking the law.
Even though detention is generally mandatory, immigration officials can choose to let someone out temporarily. This is called parole, and it can happen “on a case-by-case basis for urgent humanitarian reasons or significant public benefit.”[4]
It is important to know that in immigration, the word “parole” means something different than what most people think.
In immigration, parole is a special permission that the Secretary of Homeland Security can give to allow a non-citizen to enter or stay in the U.S.— even if they lack a legal basis for admission, typically for urgent humanitarian reasons or significant public benefit.
This is different from the criminal justice version of parole, where a person is let out of prison early if they follow certain rules. Just because an immigrant is paroled into the U.S. does not mean they did anything wrong or committed a crime.
If an asylum seeker is found to have a credible fear of returning to their home country but is not released through the government’s parole process, they will probably have to stay in detention while their case is being heard in immigration court, which can take years.
Notice to Appear/ Immigration Court
CBP may issue a Notice to Appear (NTA) to an asylum seeker at the border. This puts them into removal proceedings in immigration court where they can file their asylum claim.
A report from Oct 11, 2023 (when asylum was still possible at the southern border) explains this process:
“It may be perplexing that CBP would issue NTAs at port of entry, since, in practical terms, this could be interpreted as meaning that the government is allowing people to enter the country for the sole purpose of trying to deport them. However, in the U.S. immigration system, the Courts and Judges play a central role in deciding asylum applications. With a growing number of asylum seekers arriving at the U.S.-Mexico border, including at ports of entry, often the most direct path to enabling immigrants to exercise their right to apply for asylum is by putting them into the Court system.” [5]
CBP One
From January 12, 2023, to January 20, 2025, there was an app called CBP One. It let people who had a fear of persecution in their home countries and who wanted to request asylum in the U.S. sign up in advance to come to the southern U.S. border and ask for asylum through a CFI.
The new administration has stopped using the CBP One app. It was the only way to ask for asylum at the southern border. As of now, the southern border is completely closed to people trying to seek asylum.
Conclusion
Removing someone from the U.S. is a complicated process. We hope this blog helped explain the part that CBP plays in that process.
In our next and final blog in this three-part series, we will talk about the role of ICE and what they do.
[1] https://www.amnesty.org/en/latest/news/2025/02/the-right-to-seek-asylum-does-not-exist-at-u-s-mexico-border/
[2] https://www.whitehouse.gov/presidential-actions/2025/01/protecting-the-american-people-against-invasion/
[3] https://www.cbsnews.com/news/us-canada-border-asylum-processing-migrant-crossings/
[4] https://www.law.cornell.edu/cfr/text/8/212.5
[5] https://tracreports.org/reports/730
