The Biden administration received two victories in separate rulings on Friday over the use of Title 42 on the southern border. A federal appeals court panel in the District of Columbia ruled Friday that the Biden administration may continue expelling illegal migrant families from the United States. The second ruling came hours later in Texas where a federal judge ruled that unaccompanied minors are not exempt from expulsion under Title 42.
There was one exception to the D.C. appeals court ruling. Illegal migrant families cannot be expelled to countries where they may face persecution. The panel cited “stomach-churning evidence” of families being returned to countries where they face rape, torture, and death.
Department of Homeland Security (DHS) officials decided it was too dangerous to expel unaccompanied minors and exempted them from expulsion last year. The District Court of Appeals ruling states that the three-judge panel noted that the CDC has not provided evidence that Title 42 blocks the coronavirus. But, they allowed the Biden administration to continue the policy, just not as far as to continue to send illegal migrants back to countries where they may be in danger.
As a reminder, it is the CDC that put Title 42 in effect during the Trump administration when the coronavirus pandemic began in order to mitigate the spread of the virus. It is a public health policy decision that was meant to protect border law enforcement officers and residents from infection by COVID-19 positive illegal migrants on the southern border. The Biden administration left Title 42 in place and, much to the irritation of open borders advocates, continues to keep it in place.
In the first decision issued Friday, the three-judge appeals court panel said the Centers for Disease Control and Prevention had provided no evidence that the Title 42 order blocked the coronavirus. The judges — two appointed by President Barack Obama and one by President Donald Trump — also emphasized that U.S. Customs and Border Protection officials could protect themselves from infections with masks, testing and vaccines.
Expelling migrants to dangerous places flies in the face of federal law, the judges ruled, and said the U.S. government admitted it is “aware of … the quite horrific circumstances that non-citizens are in in some of the countries that are at issue here.”
“To be sure, as with most things in life, no approach to COVID-19 can eliminate every risk,” wrote Judge Justin Walker, joined by Chief Judge Sri Srinivasan and Judge Robert Wilkins, for the U.S. Court of Appeals for the District of Columbia Circuit. “But from a public-health perspective, based on the limited record before us, it’s far from clear that the CDC’s order serves any purpose. For now, the Executive may expel the Plaintiffs, but only to places where they will not be persecuted or tortured.”
District Court Judge Mark Pittman in Texas said the Biden administration also cannot exempt children and teens traveling without a parent from the expulsion policy. Homeland Security officials decided last year that was too risky to expel children traveling alone. Just hours after the D.C. appeals court ruling, Judge Pittman ruled that unaccompanied minors place too great of a burden on border states like Texas. He ruled that there is no exception for unaccompanied minors but did stay his order for seven days in order to allow time for the government to appeal. Pittman described the Biden administration’s decision to exempt unaccompanied minors from Title 42 as “arbitrary” and “capricious” , failing to adequately consider its impact on Texas. Pittman pointed to health care, administrative and criminal justice costs as additional burdens to border states.
Pittman wrote that “border states such as Texas now uniquely bear the brunt of the ramifications” of the policy, though he stayed the order for seven days to allow the government to appeal.
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Mexico does not accept the return of unaccompanied minors under Title 42, but U.S. officials could expel them to their home countries. The Trump administration used the Title 42 policy to expel nearly 16,000 unaccompanied minors, records show.
The ACLU paints the first ruling as a victory.
“This is a huge victory and no longer allows the Biden administration to use the pretext of public health to deny people seeking protection a hearing,” said ACLU lawyer Lee Gelernt. “Now they have to give people whatever the immigration laws provide for assessing persecution … They have to give screenings. People cannot just be taken and summarily expelled, put on a plane to Haiti, pushed back over a bridge to Mexico.”
The ACLU had also filed a lawsuit to stop the expulsions of unaccompanied minors, but that stalled after Biden exempted them from the policy and now lawyers are considering whether to reactivate it.
Federal officials had argued in the D.C. case that they offer a “limited opportunity” for migrants to seek protection under international protocols such as the Convention Against Torture — which unlike asylum, offers temporary protection from deportation but no path to permanent residency. But the judges said in the ruling that “the parties in this case dispute whether that opportunity exists in practice.”
However, the judges said that the ruling is less than what the ACLU wanted. There is not a path to asylum in it or for permanent legal status. Officials can still detain and expel illegal migrants other countries deemed less dangerous. The ruling will take effect in a few weeks when the court formally issues a mandate.
Under the first ruling, additional efforts will have to be made by Border Patrol agents. They will have to screen each migrant on the issue of danger if they are returned. It will slow the process by adding steps to the initial screenings. If migrants say they fear torture or persecution, an asylum officer will be needed and the process becomes more complicated. This puts pressure on the Biden administration to lift Title 42, which is what open borders advocates have wanted all along. The Biden administration plans to implement changes in the coming weeks through U.S. Citizenship and Immigration Services which will have asylum officers making initial rulings for humanitarian protection. The changes take the decisions out of the immigration court system, already completely backlogged.
The Biden border crisis continues to be a national security threat. Until DHS takes its responsibilities seriously and enforces immigration laws already on the books, it will continue. Biden conveniently continued Title 42 because it fit in with his focus on the pandemic. The policies and agreements that the previous administration put into place were successful in controlling the southern border. Biden deliberately ended most of them and his border crisis exploded.
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