Court Upholds Title 42 Federal Government Border Policy
WASHINGTON — The U.S. government can still expel southern border migrant families under a health policy known as Title 42 and deny them the ability to seek asylum, but it cannot return them to countries where their life or liberty will be at risk, a federal appeals court ruled on Friday.
For now, the U.S. Court of Appeals for the District of Columbia Circuit ruling will allow the Biden administration to continue using public health policies, the key tool that both the Biden and Trump administrations have used for the past two years to combat illegal border crossings.
However, the ruling will likely require the Biden administration to screen migrant families before deporting them to ensure deportation would not lead to persecution or torture of the migrants.
“That is probably [Title 42] grants executive branch sweeping powers to bar aliens from entering the United States during a public health emergency; that law enforcement may expel aliens violating such a prohibition; and that under… the Convention against Torture, the executive branch cannot expel aliens to countries where their ‘life or liberty would be threatened,'” the three-judge panel wrote in a unanimous statement.
The Centers for Disease Control and Prevention under the Trump administration issued its Title 42 regulation in March 2020, leveraging an obscure 1944 public health agency that allowed the government to prevent foreigners from entering the country to stop the spread of a communicable disease to prevent.
The American Civil Liberties Union sued the Biden administration last year for its use of Title 42 to expel migrant families without giving them an opportunity to seek asylum, a policy it says overrides existing legal protections contained in the Immigration Act are integrated, illegally bypasses.
The US District Court in Washington has issued a preliminary statement upholding this view, despite staying the district court judge‘s order stopping family expulsions.
The Court of Appeal qualified that view, saying only that the government had no blanket right to expel migrants regardless of security concerns.
The case is still in its early stages and the Court of Appeals has remanded the case to the District Court for further consideration. The opinion also does not apply to migrants traveling without minor children, as they were not involved in the ACLU’s lawsuit. The Biden administration has already agreed not to use Title 42 to deport unaccompanied minors and exempted them from Title 42 under a new CDC guideline in July.
However, a federal judge in Texas ruled in a separate case Friday night that the Biden administration cannot exempt unaccompanied children from Title 42 solely based on their unaccompanied child status. That lawsuit was filed by the state of Texas, which has argued that Mr. Biden’s immigration policies harm 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 deported under Title 42. That court order lapsed after the Biden administration announced it would no longer exclude children traveling alone as part of public health policies.
In his 37-page ruling Friday night, US District Judge Mark Pittman stayed his own order for seven days and gave the government a chance to appeal. If the verdict stands, children would also be subject to the DC court’s verdict.
Biden administration officials did not respond to requests for comment on either ruling.
Lee Gelernt, the ACLU attorney who represented the case before the Court of Appeal, said the ruling represents a victory for migrants because the government can no longer deny their human rights with the Public Health Act.
“No court has accepted the government’s view that public health laws can override our national and international obligations,” Mr Gelernt said. “We hope that the Biden administration will now accept this Circuit Court ruling and end Title 42 outright without further litigation.”
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 them constituting the expulsion of migrant families. Most were sent back across the border to Mexico, but some were on deportation flights to their home countries, including Haiti and Guatemala. The US has even started deporting some migrants to third countries, such as Venezuelans who illegally crossed the border into Colombia, where 1.7 million displaced Venezuelans already live, according to the United Nations High Commissioner for Refugees.
The court’s ruling, if not held pending further litigation, would negate some of the Title 42 appeal offers. Rather than blanket deportation of migrants like the thousands of Haitians the Biden administration pushed back to Haiti in September, it would have to screen each person, which will take a long time.
The judges acknowledged their decision would mean more migrants would be detained in close proximity to each other and border guards, one of the situations the government sought to avoid with its Title 42 policy to prevent the spread of Covid-19 . However, the court censured the Biden administration for failing to adjust its pandemic reasoning over time.
“The CDCs [Title 42] Order, in some respects, looks like a relic from a time without vaccines, scarce testing, few therapeutics and little certainty,” the judges wrote. “We cannot blindly bow to the CDC under these circumstances.”
write to Michelle Hackman at [email protected]
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