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Appellate court allows Biden administration to keep expelling families under health law for now

A line of children with hands on each other's shoulders
Children who were expelled from the U.S. and sent back to Mexico with their parents wait in line for food in Reynosa, Mexico, on March 24.
(Carolyn Cole / Los Angeles Times)

A federal appellate court Thursday temporarily granted the Biden administration permission to continue the use of a public health order to quickly expel migrants with children stopped along the U.S. border.

In a brief ruling, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit granted the administration’s request to stay a lower court’s ruling blocking the expulsion policy.

The Trump administration had invoked the 1944 health statute known as Title 42 to close the border and prevent people from entering the country, citing concerns about the spread of the coronavirus. The Biden administration has continued the policy.

The case, brought by the American Civil Liberties Union and other groups, focuses on families with children, meaning the administration can continue to expel single adults under the provision.

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U.S. District Judge Emmet Sullivan had given the Biden administration until Thursday to limit use of the law while immigrant and legal advocates proceeded with their lawsuit against it.

Sullivan this month found that advocates were likely to succeed with their case. In a 58-page ruling, he wrote that migrant families subjected to Title 42 “face real threats of violence and persecution” and are deprived of statutory rights to seek protection in the U.S.

The administration swiftly appealed Sullivan’s Sept. 17 decision. Thursday’s order by the appellate court offers an indication of how it could ultimately rule.

The Biden administration says migrants can still get protection under a Trump-era pandemic policy. But in a year, fewer than 1% have been able to do so.

Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, said he was disappointed by the ruling.

“Nothing stops the Biden administration from immediately repealing this horrific Trump-era policy,” he said. “If the administration is making the political calculation that if it acts inhumanely now it can act more humanely later, that calculation is misguided and of little solace to the families that are being sent to Haiti or brutalized in Mexico right now.”

The Department of Justice did not immediately respond to requests for comment on the court’s decision.

Before the Trump administration, migrants who made it to the U.S. and sought asylum or other humanitarian protections were detained or released temporarily into the country pending a final immigration court decision, which could take years amid a continually growing backlog. Under President Trump, most were forced to wait out their cases in Mexico.

By invoking Title 42, immigration authorities can quickly expel migrants without allowing them to even plead their case, though increasingly the Biden administration has been making an exception for families.

The use of Title 42 gained global attention last week after images captured horseback-mounted Border Patrol agents chasing down desperate Haitians. Roughly 30,000 migrants, the majority of them Haitian, arrived at the southern border near Del Rio, Texas. The U.S. has flown about 4,600 of them to earthquake-ravaged, politically unstable Haiti since Sept. 19. Department of Homeland Security Secretary Alejandro N. Mayorkas justified those expulsions under Title 42. More than 12,000 others were released into the U.S. and placed into deportation proceedings.

Mayorkas on Thursday fielded questions about the Biden administration’s legal fight to keep in place the Title 42 policy.

“We have taken a number of measures along the southern border and, frankly, south of that border, to address the numbers of individuals who are seeking to regularly migrate to the United States,” he said on a call with reporters.

Mayorkas touted the administration’s work with Mexico and the governments in the so-called Northern Triangle (Honduras, Guatemala and El Salvador), as well as various efforts targeting individuals who repeatedly attempt to cross the border.

“All of the measures that we are taking are showing results,” he said. “We will continue to take those actions.”

Mexico has received many migrants expelled from the U.S. who are from Central America, the Caribbean and elsewhere. But recently, as the Mexican government has been willing to accept fewer migrants, the U.S. has allowed more to stay as they pursue humanitarian protection. Among the 86,000 parents and children traveling as families who were encountered on the southern border last month, fewer than 20% were immediately expelled.

The Biden administration aims to reduce immigration from El Salvador, Guatemala and Honduras, the so-called Northern Triangle. Why target those nations?

As a presidential candidate, Biden vowed to restore the option to seek asylum at the U.S. border. Advocates thought the end to Title 42 was in sight.

Then in August, amid the rise of the highly contagious Delta coronavirus variant, the U.S. Centers for Disease Control and Prevention issued an 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.”

Justice Department lawyers argued in a court filing Monday that halting Title 42 “would require the government to hold covered family units in congregate settings for hours or days while they undergo immigration processing, in facilities that are not equipped for physical distancing, quarantine, or isolation at the best of times, and that are now substantially over their COVID-restricted capacity.”

But public health experts note that people who refuse to get vaccinated are driving the increase of infections in the U.S. This month, former CDC officials and other experts wrote a letter to the Biden administration condemning the current policy as “scientifically baseless and politically motivated.” The experts said that measures including masking, social distancing, quarantine and vaccination effectively prevent the spread of COVID-19. They also argued that asylum seekers don’t have to be held in detention and that transferring detainees between facilities before deporting them increases the risk of transmission.

The circuit court’s decision was not unexpected.

Last year, Judge Sullivan in a case involving a different ACLU lawsuit blocked the Trump administration from invoking Title 42 to expel unaccompanied children. In January, the District of Columbia appellate court agreed to temporarily overrule that decision and allow immigration authorities to continue removing those children from the U.S. The Biden administration later decided to exempt from Title 42 children who arrive without a parent.


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