Border officials can continue to expel migrant families under COVID restrictions, court rules

U.S. Customs and Border Protection officials will be able to continue using Title 42 to expel migrant families from the U.S. after a three-judge panel in Washington D.C. granted a request from the Biden administration to block a lower court's decision over the CDC policy.

Just two weeks ago, U.S. District Judge Emmet G. Sullivan granted a preliminary injunction halting the implementation of Title 42 against migrant families as part of a lawsuit launched by a coalition of human rights and immigration advocacy groups. Sullivan granted the government a two week pause before his order was implemented, and the Biden administration immediately appealed.

Advocates sharply criticized the Biden administration for the move, arguing that the appeal is "an abandonment of the commitments and principles that the administration pledged to uphold."

On Thursday evening, Judges Judith W. Rogers, Patricia A. Millett, and Gregory G. Katsas agreed with the Biden administration's arguments, allowing CBP to continue expelling families while the case moves forward. A hearing is scheduled for October 21.

Law invoked by Trump admin

As the COVID-19 pandemic began in March 2020, Trump administration officials put into place Title 42—a public health order ostensibly supported by the CDC—that allows CBP officials to rapidly deport those who crossed into the U.S. if they had traveled through a country with COVID-19 infections.

This policy, which relies on a 1944 public health law, was used by the Trump administration to push migrants out of the United States, including thousands of asylum seekers who are still marooned in northern Mexico. That policy has remained in place under President Joe Biden, even as other Trump border policy bulwarks, including the Migrant Protection Protocols, were shuttered.

In January, a coalition of human rights and immigration advocacy groups—including the ACLU and the Refugee and Immigrant Center for Legal Education and Legal Services—filed a lawsuit on behalf of 19 asylum-seeking parents and their children, arguing that the Biden administration's use of Title 42 is unlawful because it allows the "summary expulsion of non-citizens, including vulnerable families seeking asylum in this country, without any of the procedural protections guaranteed by Congress—even if the families show no sign of having COVID-19."

The group wrote that the administration has used Title 42 as a pretext to block families from seeking asylum and has moved to "usurp Congress's role and bypass the entire immigration statutory scheme."

"Specifically, the administration contends that public health provisions in Title 42 of the U.S. Code—provisions that have rarely been used and never in this way—allow it to set aside the immigration laws," they wrote. "Title 42 authorizes various powers, such as testing and quarantines, but has never been interpreted to authorize the broad powers the government is claiming here. Not only does the Title 42 process violate the immigration statutes, it is also patently arbitrary and capricious from a public health standpoint."

"Prior to the Title 42 process, and pursuant to longstanding immigration statutes protecting asylum seekers, plaintiffs were entitled to assert claims for asylum and related forms of humanitarian protection, and to procedures Congress established to ensure the fair determination of their right to remain in the United States," the group wrote.

Sullivan agreed.

In a 58-page memorandum, Sullivan wrote that he believed the plaintiffs could win on the merits of their arguments, and outlined how migrant families represented a single class of individuals who could sue as a group. He wrote that while the law does give the Homeland Security Secretary the ability to use various health measures to "prevent the introduction, transmission or spread of communicable diseases," the law does not grant the authority to remove or expel people from the U.S.

Lawyers for the Biden administration responded, writing in their request for a stay pending the appeal that Sullivan's decision "prohibits the government from implementing a vital public health measure designed to protect against the uncontrolled spread of COVID-19."

They wrote that weeks earlier the director of the CDC Rochelle Walensky again exercised her longstanding authority to "temporarily suspend the right to introduce into the United States certain noncitizens traveling from Mexico and Canada, regardless of their country of origin, who would otherwise be held in congregate settings" at the nation's ports of entry or at U.S. Border Patrol stations.

Walensky, they wrote, made this decision "in light of the public health risks inherent in holding covered noncitizens in these congregate settings, it is imperative to continue to suspend the right to introduce such covered noncitizens, including expelling covered noncitizens as quickly as possible."

"The injunction prohibits the U.S. Government from exercising authority under the CDC order to expel noncitizens who come to the U.S. as a family unit," the lawyers wrote. "Instead of being able to expel those noncitizens quickly, as is the case for single adults subject to the order, the government must hold them in congregate settings at or near the border– facilities that are not equipped for physical distancing, quarantine, or isolation in the best of circumstances, and that are now significantly over-capacity – while conducting immigration processing."

"Preventing expulsion will increase the risk of COVID-19 transmission" to CBP officials, as well as "plaintiffs themselves, other noncitizens, and the U.S. population at large."

They argued that Sullivan's decision is based on  a "cramped understanding" of the CDC's authority, and that his decision "all but eviscerates the CDC's ability to contain the risk of transmission of communicable diseases at the border."

In their response to the Biden administration's move to block Sullivan's order, advocates wrote that Title 42 does not grant the government the ability to expel people "without access to the asylum and other protections Congress carefully guaranteed." The authority that the CDC relied on "does not say a word about expulsion," they wrote.

Instead of expulsion, the public health law "authorizes a different set of enforcement mechanisms, namely civil and criminal penalties," they wrote.

They also argued that "the balance of harms" should keep Sullivan's order in place.

"As the extensive record evidence shows" federal officials "are literally pushing families, including those with very young children, into the hands of criminal cartels in Mexico. Families are forced back over the bridges by our government while cartels stand waiting to kidnap, assault, traffic, and rape them on the other side," they wrote.

"Unsurprisingly, Defendants do not dispute that staying the injunction would threaten the lives and safety of these families," they wrote. "Rather, Defendants claim that the Department of Homeland Security should be permitted to continue expelling asylum-seeking families because of the potential risk of COVID-19 transmission."

"Yet as the district court, public health declarants, and [CDC] itself explain, any such risk is the result of Defendants' refusal to allocate resources to safely process families," they wrote.

In their request to keep Sullivan's order, immigration advocates wrote the problem is DHS's "refusal to allocate its substantial resources, in excess of $80 billion, to take the recommended CDC mitigation steps." And they rejected the government's argument that an injunction barring the use of Title 42 for families would "result in a sea change" because in July only about 14 percent of families were expelled under Title 42.

This year, roughly 952,000 people were processed under Title 42, and of those around 108,000 or about 11 percent were families. In August, CBP figures show that 91,147 people were expelled under Title 42.

In the Tucson Sector, around 136,000 people have been expelled under Title 42. Of those about 7,000 were families, and another 1,000 were unaccompanied minors traveling without parents or guardians.

In August, Tucson Sector agents expelled 13,000 people under Title 42, including 901 families, according to CBP statistics.

Further, advocates argued that Title 42 expulsion of families make little sense because asylum-seeking families subjected to Title 42 "represent only 0.1% of all the land travelers from Mexico. These other travelers, such as commercial drivers, are permitted to enter by land without disclosing their vaccination and testing status." U.S. Customs and Border Protection officials will be able to continue using Title 42 to expel migrant families from the U.S. after a three-judge panel in Washington D.C. granted a request from the Biden administration to block a lower court's decision over the CDC policy.

"The decision of the appeals court to lift the stay on Title 42 expulsions is a travesty, but the fact the Biden administration appealed the original decision was an abandonment of the commitments and principles that the administration pledged to uphold," said Allen Orr, the president of the American Immigration Lawyers Association.

"When a court decides a public health law weaponized by the previous administration needs to stop being used as a bludgeon against asylum seekers, you should just accept it," Orr said. "This policy is currently being used to expel thousands of people to Haiti, with flights leaving every day. Until this policy is terminated, we will continue to see images of families being expelled, without the meaningful chance to claim protection required under our laws. I am so grateful the ACLU and others are continuing to fight this inhumane and un-American policy.”

Judge ruled expelling kids violated U.S. law

Last November, Sullivan ruled against the Trump administration over Title 42 expulsion of unaccompanied minors, agreeing that they represented a class that could sue in U.S. court, and he blocked the administration from deporting children to Mexico.

In that decision, Sullivan ruled that the practice violated federal law, and that Title 42 did not give CBP officials the authority to expel children from the U.S.

In July, the CDC created an exemption for children under the Title 42 order, writing that there is "appropriate infrastructure in place to protect the children, caregivers, and local communities from elevated risk of COVID-19 transmission as a result of the introduction of [unaccompanied children], and U.S. healthcare resources are not significantly impacted by providing necessary care. The CDC believes the COVID-19-related public health concerns associated," with their "introduction can be adequately addressed without the [unaccompanied children] being subject to the October Order, thereby permitting the government to better address the humanitarian challenges for these children."

"Rather, the statutory scheme reflects Congress's focus on the public's health, authorizing the CDC to create regulations that allow for the 'apprehension, detention, examination, or conditional release of individuals' entering from foreign countries to stop the spread of communicable diseases from those countries," Sullivan wrote on Sept. 16. "And then in times of serious danger, to halt the 'introduction of persons' from designated foreign countries."

While Biden administration officials argued that it could expel people after they were intercepted, Sullivan said this argument was unpersuasive. The word expel or remove are not included in the statute, and even if one accepts that the law allows officials to "prohibit" entry, "this phrase also does not encompass expulsion from the United States," he wrote.

And he agreed that the families fleeing violence and poverty face irreparable harm if they're forced back across the border, where they face victimization by criminal cartels and gang members and "face numerous barriers to finding safe places to shelter," Sullivan wrote.

'Long-overdue win' — Unitarian reverend

Advocates praised Sullivan's decision blocking Title 42.

In a statement, the president of the Unitarian Universalist Service Committee, Rev. Mary Katherine Morn, said that the ruling was a "tremendous if long-overdue win for families at our borders, who—for nearly 18 months now—have been unlawfully deprived of their right to seek asylum under U.S. and international law."

"We celebrate with the directly-affected families, advocates, and attorneys who made this result possible through their tireless advocacy and unwillingness to accept the unacceptable," she said.

Morn drew a direct line between the UUSC's founding, when Jewish refugees and other survivors of Nazi persecution were turned away, to today, calling Title 42 "one of the most extreme anti-immigrant measures to go into effect since the U.S. asylum system began."

"Our government is once again repeating this disgraceful history by expelling people to harm," Morn wrote.

"While both Trump and Biden tried to cloak these heinous actions under the mantle of public health, this has been opportunism, plain and simple. From the moment Title 42 went into effect to the present, public health experts have consistently denounced expelling and turning away refugees, and the United Nations refugee agency has repeatedly stated that governments have the capacity and obligation to both protect public health and uphold refugee law at the same time," she said.

"As pleased as we are to see this decision, we also recognize its limits. The court's order applies only to families, leaving adult asylum-seekers traveling alone at continued risk of expulsion. Moreover, the decision does not go into effect for two weeks, and there is a serious danger the Biden administration may attempt to appeal and overturn this ruling in the meantime. Finally, it is shameful that it took a federal court order to finally halt this policy, given that advocates—including UUSC—have consistently urged the Biden administration since they took office to completely terminate Title 42 and restore full access to asylum in the U.S."