Title 42 border policy for expelling immigrants upheld by federal court in DC

WASHINGTON — The U.S. government can continue to expel migrant families at the southern border under a public health policy known as Title 42, denying them a chance to ask for asylum, but can’t send them back to countries where their life or freedom will be in danger, a federal appeals court ruled Friday.

The ruling, made by the U.S. Court of Appeals for the District of Columbia Circuit, will for now allow the Biden administration to continue its use of the public-health policy, the key tool both the Biden and Trump administrations have used for the last two years to combat illegal border crossings.

The ruling, however, will likely require the Biden administration to begin screening migrant families before expelling them to ensure that any expulsion wouldn’t result in the migrants’ persecution or torture.

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“It is likely that [Title 42] grants the Executive sweeping authority to prohibit aliens from entering the United States during a public-health emergency; that the Executive may expel aliens who violate such a prohibition; and that under…the Convention Against Torture, the Executive cannot expel aliens to countries where their ‘life or freedom would be threatened,’” the three-judge panel wrote in a unanimous opinion.

The Centers for Disease Control and Prevention under the Trump administration issued its Title 42 order in March 2020, using an obscure 1944 public health authority allowing the government to prevent the entry of any foreigners to prevent the spread of a communicable disease.

ACLU lawsuit

The American Civil Liberties Union sued the Biden administration last year over its use of Title 42 to expel migrant families without giving them a chance to apply for asylum, a policy that it argued illegally circumvented existing legal protections built into immigration law.

The U.S. District Court in Washington issued a preliminary opinion upholding that view, though the district court judge’s order halting expulsions of families was put on hold.

The appeals court narrowed that view, saying only that the government doesn’t have a blanket right to expel migrants regardless of safety concerns.

The case is still in a preliminary stage, and the appeals court sent the case back to the District Court for further review. The opinion also doesn’t apply to migrants traveling without minor children, as they weren’t party to the ACLU’s lawsuit. The Biden administration has already agreed not to use Title 42 to expel unaccompanied minors and exempted them from Title 42 under a new CDC policy to that effect in July.

Texas ruling Friday

However, a federal judge in Texas ruled in a separate case Friday evening that the Biden administration can’t exempt unaccompanied children from Title 42 based strictly on their status as unaccompanied children. That lawsuit was brought by the state of Texas, which has argued that Mr. Biden’s immigration policies are harmful to the state.

In a case filed by the ACLU challenging Title 42 under the Trump administration, the federal appeals court in Washington ruled in January 2021 that unaccompanied minors could be removed under Title 42. That court order became moot after the Biden administration announced it no longer intended to remove children traveling alone under the public health policy.

In his 37-page ruling Friday night, U.S. District Judge Mark Pittman stayed his own order for seven days, giving the government an opportunity to appeal. Should the ruling stand, children also would be subject to the D.C. court’s ruling.

Representatives for the Biden administration didn’t respond to requests for comment for either ruling.

Lee Gelernt, the ACLU lawyer who argued the case before the appeals court, said the ruling represented a win for migrants because the government can no longer use public-health law to deny their human rights.

“No court has accepted the government’s view that the public health laws can override our domestic and international obligations,” Mr. Gelernt said. “We hope the Biden administration will now accept this appeals court ruling and end Title 42 across the board with no further litigation.”

1.1 million expulsions

In the Biden administration’s first year in office, it expelled migrants from the country about 1.1 million times, with about 150,000 of those representing expulsions of migrant families. The majority were sent back across the border to Mexico but some were in expulsion flights to their home countries, including to Haiti and Guatemala. The U.S. has even begun expelling some migrants to third countries, such as Venezuelans who crossed the border illegally to Colombia, which already hosts 1.7 million displaced Venezuelans, according to the United Nations Refugee Agency.

The court’s ruling, should it not be halted pending further litigation, would take away some of the appeal Title 42 offers. Rather than performing blanket expulsions of migrants, such as the thousands of Haitians the Biden administration deported back to Haiti in September, it would need to provide each person a screening, which will take considerable time.

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The judges acknowledged that their ruling would mean that more migrants would be kept in detention in close proximity to each other and to border officials, one of the situations the government’s Title 42 policy had sought to avoid to prevent the spread of Covid-19. But the court rebuked the Biden administration for failing to adjust its pandemic reasoning as time passed.

“The CDC’s [Title 42] order looks in certain respects like a relic from an era with no vaccines, scarce testing, few therapeutics, and little certainty,” the judges wrote. “We cannot blindly defer to the CDC in these circumstances.”

Write to Michelle Hackman at [email protected]