A federal appellate court on Friday upheld the government’s authority to expel migrants under a Trump-eraretained by the Biden administration, but barred U.S. border officials from expelling families to countries where they could be harmed.
The D.C. Circuit Court of Appeals partially affirmed a lower court order against the government’s expulsion of migrant families under a public health authority known as Title 42, which both the Trump and Biden administrations have argued is needed to reduce the spread of COVID-19 inside border facilities.
A three-judge panel said Title 42, which was first invoked by the Centers for Disease Control and Prevention (CDC) in March 2020 over the objections of agency officials, allows border authorities to “immediately expel” migrants entering the U.S. without legal permission during a public health emergency.
“But it cannot expel them to places where they will be persecuted or tortured,” the panel said in a 32-page opinion writen by U.S. Circuit Judge Justin Walker, who was put on the court by former President Trump.
Migrants processed under Title 42 are quickly expelled to Mexico or placed on deportation flights to their home countries without being allowed to request U.S. humanitarian refuge before an asylum officer or an immigration judge.
Lee Gelernt, an American Civil Liberties Union (ACLU) attorney who filed the lawsuit against Title 42, hailed Friday’s ruling as an “enormous victory” for asylum-seekers. “Title 42 can no longer be used to summarily expel families seeking refuge from persecution or torture,” he told CBS News.
While Friday’s ruling rejected the ACLU’s argument that Title 42 does not authorize expulsions, it could require the government to screen migrant families before expelling them to ensure they are not fleeing persecution — a practice that could undermine policy’s public health justification, since it could keep migrants in U.S. custody longer, exposing them to others.
The court order, if allowed to remain in place, could also prompt the Biden administration to stop applying Title 42 to families with children altogether, as it planned to do so, given the logistical challenges that would arise from screening and detaining parents and children before expelling them.
The Department of Homeland Security (DHS), which oversees U.S. border agents, did not immediately respond to a request to explain how the government will comply with the court order, which may be appealed to the Supreme Court.
During the Biden administration, most families who have arrived at the southern border with children have been processed under regular immigration proceedings, which typically means they are released from U.S. custody with a notice to appear in court, where they can ask a judge for asylum.
In January, 31,795 migrant parents and children traveling as families entered U.S. custody along the Mexican border, and officials expelled 8,333 of them, or 26%.
Friday’s ruling only applies to migrant families traveling with minor children, not to single adults, who make up the majority of those expelled under Title 42. The Biden administration has not been expelling unaccompanied children under Title 42, refusing to revive the Trump-era practice in these cases.
Despite criticism from progressives and asylum advocates, the Biden administration has strongly defended Title 42 in federal court, recently saying the spread of the Omicron variant justified the policy’s continued enforcement.
In President Biden’s first full 12 months in office, U.S. officials carried out over 1.1 million Title 42 expulsions, compared to 400,000 expulsions recorded during the Trump administration in 9 months, Customs and Border Protection statistics show.
But the Biden administration also faced an unprecedented number of border arrivals, stopping migrants over 1.7 million times in fiscal year 2021, a 77% increase from fiscal year 2019, the last one before the pandemic.