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Appeals court says US can keep expelling migrant families

The government can continue to use Title 42 to turn families away at the southern border

A U.S. Customs and Border Protection vehicle at the border fence in the Rio Grande Valley area of Texas in 2019.
A U.S. Customs and Border Protection vehicle at the border fence in the Rio Grande Valley area of Texas in 2019. (Jinitzail Hernández/CQ Roll Call file photo)

A federal appeals court on Thursday gave the Biden administration permission to continue expelling migrant families under a public health directive known as Title 42, delivering a blow to immigrant advocates who had successfully challenged the policy in court.

In a brief order, the U.S. Court of Appeals for the District of Columbia Circuit granted the administration’s request for temporary reprieve from a lower court order against the expulsion policy, which permits border agents to send back migrants without considering their claims for protection.

The three-judge panel for the appeals court said the government “satisfied the stringent requirements for a stay pending appeal,” but did not further explain its reasoning. The panel was composed of judges appointed by presidents Donald Trump, Barack Obama and Bill Clinton.

The appeals court’s order presses pause on a ruling handed down earlier this month by Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia, who found the federal government did not have the legal authority to expel migrants who have already crossed the border without considering their claims for asylum.

[Judge shields migrant families from border expulsion policy]

He also found that migrants subjected to Title 42 “face real threats of violence and persecution if they were to be removed from the United States” and ordered the administration to stop implementing the expulsion policy.

However, Sullivan delayed the effect of his order for 14 days to give the Biden administration a chance to request relief from the D.C. Circuit. His injunction was set to take effect on Friday.

“We are disappointed in the ruling but it is just an initial step in the appellate litigation, and nothing stops the Biden administration from immediately repealing this horrific Trump-era policy,” Lee Gelernt of the American Civil Liberties Union, the lead attorney in the case, said in a statement.

Representatives for the Department of Homeland Security and Department of Justice didn’t immediately return requests for comment late Thursday.

The federal government told the appeals court that Sullivan’s order blocking the directive would increase the spread of COVID-19. It also warned that border facilities where families would be held for processing are “not equipped for physical distancing, quarantine, or isolation at the best of times, and that are now substantially over their COVID-restricted capacity.”

The ACLU and other advocates, which represented migrant families in the litigation, countered that asylum-seekers are at far greater risk if Title 42 is allowed to continue.

“As the extensive record evidence shows, Defendants 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.

The advocates also claimed in a court filing that any increased spread of COVID-19 as a result of ending Title 42 would be due to the government’s “refusal to allocate resources to safely process families.”

Though fighting in court to keep Title 42 alive, the Biden administration is already exempting the majority of migrant families from the directive. Of the more than 86,000 people who arrived as a family unit in August, approximately 16,200 were expelled, according to government data.

The decision marks the second time the D.C. Circuit has given Title 42 the green light.

Last year, following an earlier lawsuit by the ACLU on behalf of migrant children traveling alone to the border, Sullivan similarly blocked the Trump administration from using Title 42 to expel unaccompanied minors.

The government appealed, and the D.C. Circuit agreed to temporarily lift that ruling. However, the Biden administration ultimately decided to officially exempt children who cross the border without their parents from Title 42.

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