Appellate court allows Biden administration to keep expelling families under health law for now

A federal appellate court granted Thursday temporary permission to the Biden administration to continue using a public order for the expulsion of children and migrants stopped at the U.S. border. Border. In a short ruling, a panel of three judges from the U.S. Court of Appeals in the District of Columbia Circuit granted an administration’s request for a stay of a lower court’s decision blocking the expulsion policy.

The Trump administration had invoked the 1944 health statute known as Title 42 to close the border and prevent people from entering the country, citing concerns about the spread of the coronavirus. This policy has been maintained by the Biden administration.

The case was brought by the American Civil Liberties Union, and other groups ,. It focuses on families that have children. This means that the administration can continue to expel single adult under the provision.

U.S. district judge Emmet Sullivan had given Biden administration until Thursday, to limit the use of the law, while immigrant- and legal advocates continued with their lawsuit against it.

Sullivan found this month that advocates were likely succeed in their case. In a 58-page ruling, he wrote that migrant families subjected to Title 42 “face real threats of violence and persecution” and are deprived of statutory rights to seek protection in the U.S.

The administration swiftly appealed Sullivan’s Sept. 17 decision. The appellate court’s Thursday order gives an indication of what it might ultimately decide.

Lee Gelernt was deputy director of ACLU’s Immigrants Rights Project. He expressed disappointment at the decision.

“The Biden administration can immediately repeal this terrible Trump-era policy,” said he. “If the administration believes that it can act inhumanely now, it will be more humane later, then that calculation is wrong and of little comfort to the families being sent to Haiti or to Mexico The Department of Justice did no immediate response to inquiries for comment about the court’s decision.

Migrants who reached the U.S. seeking asylum or humanitarian protections were temporarily detained in order to await a final immigration court ruling, which could take many years due to a growing backlog. Most were made to wait in Mexico while their cases were sorted out by President Trump.

By invoking Title 42, immigration authorities can quickly expel migrants without allowing them to even plead their case, though increasingly the Biden administration has been making an exception for families.

The use of Title 42 gained global attention last week after images captured horseback-mounted Border Patrol agents chasing down desperate Haitians. Roughly 30,000 migrants, the majority of them Haitian, arrived at the southern border near Del Rio, Texas. The U.S. has flown about 4,600 of them to earthquake-ravaged, politically unstable Haiti since Sept. 19. Department of Homeland Security Secretary Alejandro N. Mayorkas justified those expulsions under Title 42. More than 12,000 others were released into the U.S. and placed into deportation proceedings.

Mayorkas on Thursday fielded questions about the Biden administration’s legal fight to keep in place the Title 42 policy.

” “We have taken several measures along the south border and, frankly speaking, the south border to address the number of individuals who seek to migrate to the United States regularly,” he stated on a conference call with reporters.

Mayorkas touted the administration’s work with Mexico and the governments in the so-called Northern Triangle (Honduras, Guatemala and El Salvador), as well as various efforts targeting individuals who repeatedly attempt to cross the border.

” “All of the actions that we have taken are showing results,” he stated. “We will continue to take those actions.”

Mexico has received many migrants expelled from the U.S. who are from Central America, the Caribbean and elsewhere. The U.S. allowed more migrants to remain in Mexico recently as it has become less willing to take in immigrants from Central America, the Caribbean, and elsewhere. Among the 86,000 parents and children traveling as families who were encountered on the southern border last month, fewer than 20% were immediately expelled.

As a presidential candidate, Biden pledged to restore the right to asylum at the U.S. frontier. Advocates thought the end to Title 42 was in sight.

Then in August, amid the rise of the highly contagious Delta coronavirus variant, the U.S. Centers for Disease Control and Prevention issued an order keeping Title 42 in place “until the CDC director determines that the danger of further introduction of COVID-19 into the United States from covered noncitizens has ceased to be a serious danger to the public health.”

Justice Department lawyers argued in a court filing Monday that halting Title 42 “would require the government to hold covered family units in congregate settings for hours or days while they undergo immigration processing, in facilities that are not equipped for physical distancing, quarantine, or isolation at the best of times, and that are now substantially over their COVID-restricted capacity.”

But public health experts note that people who refuse to get vaccinated are driving the increase of infections in the U.S. This month, former CDC officials and other experts wrote a letter to the Biden administration condemning the current policy as “scientifically baseless and politically motivated.” The experts said that measures including masking, social distancing, quarantine and vaccination effectively prevent the spread of COVID-19. They also claimed that asylum seekers shouldn’t be kept in detention, and that moving detainees from one facility to another increases the risk of them being deported.

The circuit court’s decision wasn’t surprising.

Last year, Judge Sullivan in a case involving a different ACLU lawsuit blocked the Trump administration from invoking Title 42 to expel unaccompanied children. The District of Columbia appellate court temporarily overruled that decision in January and allowed immigration authorities to continue to remove those children from the U.S. The Biden administration later decided to exempt from Title 42 children who arrive without a parent.

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