Biden administration appeals order to stop expelling migrants under health law

Juana Cruz Funez and her daughter, Itzy Varela Cruz, look distraught.
Juana Cruz Funez and daughter Itzy Varela Cruz of Honduras are distraught after being sent back to Mexico by the U.S. Border Patrol in Texas.
(Liliana Nieto del Rio / For The Times)

The Biden administration is appealing a federal court ruling that halts the use of a public health order to quickly expel migrants with children who are stopped along the U.S.-Mexico border.

Lawyers for the administration on Friday filed a notice of appeal before the District of Columbia Circuit court.

U.S. District Judge Emmet Sullivan on Thursday gave the government two weeks to stop its use of Title 42, a 1944 health statute invoked by the Trump administration to close the border to “prohibit ... the introduction of” people to the country because of concerns about the spread of the coronavirus.


The case focuses on families with children, meaning the administration can continue to expel single adults under the provision.

The U.S. Department of Justice declined to comment.

After Sullivan’s ruling, advocates were hopeful that government officials would choose to rescind the policy.

“Given the grave harm that the Title 42 policy inflicts on desperate, asylum-seeking families, and the public health community’s view that the policy is not necessary, we would have hoped the administration would simply accept the ruling, especially given its repeated claim that it wants to distance itself from the Trump administration’s asylum practices,” said Lee Gelernt, deputy director of the American Civil Liberties Union’s immigrant rights project.

Sullivan granted a preliminary injunction in response to a lawsuit filed by the ACLU and other groups on behalf of migrant families, deciding they were likely to succeed on their challenge to the use of Title 42. He delayed the effects of the order for two weeks to give the administration time to appeal.

In his 58-page ruling, Sullivan found that migrant families subjected to the policy are deprived of statutory rights to seek protection in the U.S. and “face real threats of violence and persecution.”

Even as Biden administration officials call Title 42 a ‘source of pain,’ they’re defending the Trump-era pandemic policy.

May 19, 2021

In August, amid the rise of the highly contagious Delta coronavirus variant, the CDC issued a new order keeping Title 42 in place “until the CDC director determines that the danger of further introduction of COVID-19 into the United States from covered noncitizens has ceased to be a serious danger to the public health.” Public health experts say people who refuse to get vaccinated are driving the increase of infections in the U.S.


Earlier this month, former CDC officials and other public health experts wrote a letter to the Biden administration condemning the policy as “scientifically baseless and politically motivated.”

Recently, Mexico has accepted fewer migrant families with children, and the U.S. has allowed more to stay in the country as they pursue asylum.

Among the 86,000 migrant parents who crossed the border with their children last month, roughly 16,000 were immediately expelled, according to government statistics.

Customs and Border Protection said 25% of the 209,000 people it encountered in August had been stopped at least once over the previous year, compared with 14% in earlier years.

The ACLU and others launched their legal challenge to Title 42 in January, just before President Trump left office. They spent months in settlement negotiations with the Biden administration but resumed the litigation after federal officials signaled that they had no immediate plans to rescind the policy.

“We wanted the Biden administration to do the right thing in January,” said Noah Gottschalk, global policy lead for Oxfam America, which is among the groups challenging Title 42. “This all could’ve been avoided.”

Last year, Sullivan used similar reasoning to block the Trump administration from using Title 42 to expel unaccompanied children, in response to a different ACLU lawsuit.

In January, the D.C. circuit court agreed to temporarily lift the lower court’s decision, but the Biden administration later decided to exempt children who arrive without a parent from Title 42.

The Associated Press contributed to this report.