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At impasse with White House, ACLU resumes fight for asylum seekers

Months after agreeing to pause its lawsuit challenging border expulsions that the government says are necessitated by the pandemic, the American Civil Liberties Union resumed its lawsuit to halt the policy on Monday.

“We gave the Biden administration more than enough time to fix any problems left behind by the Trump administration, but it has left us no choice but to return to court,” ACLU attorney Lee Gelernt said in a statement. “Families’ lives are at stake.”

Between January and June, out of the 900,000 migrants who were apprehended by Border Patrol agents, 575,000 were shut out with Title 42, an obscure public health authority issued by the Centers for Disease Control and Prevention.

Never before been used to regulate immigration, the policy cites the spread of COVID-19 as a basis to restrict immigration at the border without affording noncitizens the chance to seek asylum or other constitutionally mandated U.S. protections.

Several judges to hear suits over the issue have already indicated that the policy is likely unlawful, but President Joe Biden's election led the American Civil Liberties Union and other challengers to put their suit on hold for settlement talks.

They informed the court Monday that, seven months later, the Biden administration has shown no signs of getting rid of the policy — using it to keep out most people seeking asylum, with exceptions for unaccompanied children and some families. 

“The parties’ discussions attempting to resolve or narrow the dispute in this case have reached an impasse,” the parties wrote in a joint motion to the court in Washington. 

With the Delta variant to the virus that causes COVID-19 raging, and some migrants testing positive for the disease among huge numbers of people arriving at the southern border, the Biden administration has warned of the possibility that an influx of people crossing the border would exacerbate the pandemic. 

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Advocacy groups insist, meanwhile, that Title 42 is just an excuse to curb immigration. 

“The Biden administration knows full well that maintaining Title 42 won't stop the spread of COVID or prevent people who are literally fleeing for their lives from seeking safety in the U.S.,” Noah Gottschalk, global policy lead for Oxfam America, said in a statement. “The administration is choosing to treat refugees like political pawns, and so we are eager to return to court so we can end Title 42 for families once and for all.”

In June, facing immense pressure to lift the policy or draft a replacement, the Biden administration quietly tasked six humanitarian groups with recommending which migrants should be allowed to stay in the U.S. They aimed to admit daily up to 250 asylum seekers who were recommended by the groups until July 31. 

Now, the immigration groups plan to file a preliminary injunction to halt the policy, saying they were left with no choice. Chapters of the ACLU in Texas and the District of Columbia are challenging the policy, as are the Texas Civil Rights Project, RAICES, Center for Gender & Refugee Studies and Oxfam.

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U.S. Marshals Service via Courthouse News

The U.S. Marshals and the Bureau of Immigration and Customs Enforcement merged air fleets to create the Justice Prisoner and Alien Transportation System, an efficient and effective system for transporting prisoners and criminal aliens.