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Judge orders Biden admin to halt quickly expelling asylum-seeking families

CDC-issued Title 42 was used to expel unaccompanied children under Trump

A federal judge in Washington, D.C., on Thursday blocked the Biden administration for enforcing Title 42, allowing a class action lawsuit to proceed over the practice, which allows U.S. Customs and Border Protection to quickly expel migrants, including asylum seekers, from the U.S. if they have traveled through a country with COVID-19 cases.

In a three-page order, U.S. District Court Judge Emmet G. Sullivan granted a preliminary injunction blocking the further implementation of Title 42, but created a 14-day pause before his order is implemented.

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 noncitizens, 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."

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.

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.

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Since October, U.S. Border Patrol has expelled people 937,628 times from the U.S. until Title 42, and the Office of Field Operations—which deals with the nation's ports—expelled people 21,167 times, according to CBP figures.

In the Tucson Sector, agents expelled people 144,148 from the U.S. under the Title 42 authority. While more than 136,000 people were adults, mostly from Mexico, Tucson-area officials have expelled 7,090 people traveling as families, and more than 1,000 unaccompanied children since October.

Agents processed around 15,842 minors under Title 8, the usual immigration authority, allowing them to stay in the U.S., and just under around 4,100 people traveling as families. Of those, only a few came from countries in Central America—Guatemala, El Salvador and Honduras—or Mexico.

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.

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. 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. "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.

TucsonSentinel.com requested a statement from both CBP and the Department of Homeland Security. CBP officials responded that requests for comment should be sent to public affairs at DHS, while DHS officials referred comments to the Justice Department.

'Long-overdue win' — Unitarian reverend

Advocates praised Sullivan's decision.

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."

Biden officials: Title 42 needed to stem COVID

Sullivan rejected the Biden administration's argument that an injunction will increase the risk of COVID-19, in part because CBP facilities are fundamentally not designed to quarantine or isolate people, and may "rapidly become overcrowded" if Title 42 is rescinded.

"Despite the government's warnings regarding the capacity of its facilities and staff, the fact remains that '86% of families arriving at the southwest
border are already allowed into the United States and processed for regular removal proceedings,'" Sullivan wrote, quoting the government's own statements.

Sullivan said that while CBP argued it could not provide for quarantine space or effective social distancing without the Title 42 process, he wrote that CBP "still places families on crowded planes and buses from the Rio Grande Valley to Arizona and San Diego. And, the agency does so "without first testing the individuals and isolating those who test positive," he said.

Sullivan also rejected the government's argument that ending Title 42 could create a "pull factor" bringing more people to the U.S. and increase encounters by agents. Instead, Title 42 increased recidivism, Sullivan wrote, and that after Title 42 was established in 2020, the recidivism rate went from less than 7 percent to 40 percent.

"In other words, under the Title 42 regime, individuals seeking an asylum hearing have attempted to cross the border multiple times, "sometimes 10 times or more, and each attempt is counted as a new 'encounter,'" Sullivan wrote. "Such evidence casts doubt on Defendants' claims that
an injunction in this matter would create a 'pull factor.'"

Finally, while Biden administration officials argued that ending Title 42 would put a strain on CBP officials, and increase COVID-19 cases among the agents, Sullivan said they did not provide evidence that CBP employees who tested positive for COVID-19 contracted the virus from asylum seekers. Moreover, vaccines have become widely available, he said.

"The court does not doubt that a preliminary injunction issued in this matter would force the government 'to make difficult decisions about allocation of resources to mitigate the risks caused by COVID-19,'" Sullivan wrote. "But in view of the wide availability of testing, vaccines, and other minimization measures, the Court is not convinced that the transmission of COVID-19 during border processing cannot be significantly mitigated."

"Indeed, the government has successfully implemented mitigation measures with regard to processing unaccompanied minors in order to minimize risk of COVID-19 transmission," he said.

The Biden administration is expected to appeal Sullivan's order.

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Paul Ingram/TucsonSentinel.com

A young boy seeking asylum waits in Nogales, Sonora in April.

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