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Biden ordered to stop exempting migrant youth from expulsion policy

More than 1 million immigrants have been expelled to Mexico and their home countries under the controversial policy

The Biden administration must stop giving unaccompanied children a pass from a pandemic-related policy used to promptly expel immigrants who have entered the country without papers, a federal judge ruled Friday.

Under pressure from then-President Donald Trump in March 2020 as the coronavirus caused panic throughout the country, the Centers for Disease Control and Prevention invoked Title 42, part of the Public Health Services Act of 1944, which authorizes the CDC to prohibit entry into the U.S. persons and property it determines will increase the danger and spread of a communicable disease.

Despite condemnation from immigrant advocates who claim it denies people due process and access to the U.S. asylum system in contravention of international accords, Biden has not repealed Title 42, and more than 1 million immigrants have been expelled to Mexico and their home countries under the policy.

The government initially made no exceptions but, in response to litigation filed during Trump’s term, a month after Biden took office his CDC director in February 2021 issued an order stating the agency had decided to “except from expulsion” minors who travel to the U.S. without their parents or a legal guardian.

Alarmed by an increase of Border Patrol apprehensions of unaccompanied children from 9,429 in February 2021 to 18,890 the next month, Texas sued Biden and Department of Homeland Security officials in April 2021, alleging they were to blame for an uptick of potentially COVID-19 positive immigrants entering the country.

Then in August 2021, as the Delta variant brought another spike in COVID cases, hospitalizations and deaths, the CDC’s director issued an order continuing to exempt unaccompanied youth from Title 42, despite noting that hospitals in states on the Southwest border were being overwhelmed with people stricken with the respiratory illness, over 70% of U.S. counties on the border had high or substantial levels of community COVID transmission, and vaccination rates remained very low in El Salvador (22%), Guatemala (1.6%) and Honduras (1.5%), three of the top five countries at the time for emigration to the U.S.

U.S. District Judge Mark Pittman, a Trump appointee, denied Texas’ first motion for a preliminary injunction. But Texas filed an amended complaint challenging the August 2021 order as violating the Administrative Procedure Act and Immigration and Nationality Act.

Swayed by Texas’ arguments, Pittman on Friday found the state has standing because it has cited evidence its public fisc will be drained by unaccompanied children allowed to stay in the country.

“Texas proffers specific, uncontroverted evidence that it will experience increased financial hardship—most directly through healthcare spending,” Pittman wrote in a 37-page order.

He cited a declaration from a Texas Health and Human Services Commission analyst estimating the state spent $80 million providing emergency Medicaid services to undocumented immigrants in fiscal year 2019 (Sept. 1, 2018 to Aug. 31, 2019).

He also credited Texas’ arguments it suffers financial harm from issuing driver’s licenses to paperless immigrants and incarcerating those who commit crimes while unlawfully present in the U.S. — claims Texas Attorney General Ken Paxton, a Republican, has down pat from successfully using them to establish standing in several other challenges of Biden’s immigration policies.

In its August 2021 order exempting unaccompanied kids from Title 42, the CDC focused on measures the Border Patrol has taken to prevent the spread of COVID at ports of entry and at its stations where, by law, it is supposed to detain children for no more than three days.

It said CBP had installed plexiglass dividers in its lockups where distancing is not possible, improved ventilation systems, was providing masks to all detainees and taking any with symptoms to local hospitals.

But Pittman said nothing in the order attempts to explain how preventing the spread of COVID-19 between unaccompanied children also prevents the disease from spreading in the country’s interior.

“Indeed, as Texas points out, the CDC’s own findings reveal that ‘more than 15,000 [UAC] have been diagnosed with COVID-19—roughly 8,500 of them in  the custody of someone other than DHS,’” the judge wrote. (Brackets in original.)

Finding Texas is likely to prevail on its claim the Biden administration arbitrarily exempted unaccompanied children from Title 42, he granted the Lone Star State a preliminary injunction. He stayed his order for seven days, however, to give the feds a chance to appeal.

Pittman’s order caused whiplash for the White House, as earlier Friday a three-judge panel of the D.C. Circuit ruled DHS can no longer use the policy to expel immigrant families if they have legitimate asylum claims and face danger in their home countries.

Neha Desai, a lawyer at the National Center for Youth Law, blasted Pittman's order.

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"This decision, requiring the Biden administration to block unaccompanied children from seeking safety at our borders, will place thousands of children directly in harm's way," she told CBS News. "There is no public health rationale for preventing children from seeking asylum and expelling them to life-threatening dangers."

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Paul Ingram/TucsonSentinel.com

In its August 2021 order exempting unaccompanied kids from Title 42, the CDC focused on measures the Border Patrol has taken to prevent the spread of COVID at ports of entry and at its stations where, by law, it is supposed to detain children for no more than three days.