Appeals court: US can’t send migrant families to danger, but can expel them without hearing

ACLU calls ruling ‘huge victory’ for those fleeing torture

Asylum seekers are processed by border patrol, near the USA/Mexico border wall in Yuma, Arizona, on Feb. 22, 2022. (Katie McTiernan/Anadolu Agency via Getty Images file photo)
Asylum seekers are processed by border patrol, near the USA/Mexico border wall in Yuma, Arizona, on Feb. 22, 2022. (Katie McTiernan/Anadolu Agency via Getty Images file photo)
Posted March 4, 2022 at 1:58pm

A federal appeals court on Friday said the Biden administration may expel migrant families from the U.S. without hearing their asylum claims, but barred the government from sending them to countries where they would likely be persecuted or tortured.

The decision by a three-judge panel of the District of Columbia Circuit Court of Appeals partly upholds a lower court ruling against the government's Title 42 policy, a public health directive issued by the Centers for Disease Control and Prevention in March 2020, at the start of the pandemic. 

The policy allows border officials to turn back migrants who cross the southwest border without first considering their claims for protection.

The panel found the migrant families, represented by attorneys with the American Civil Liberties Union, are likely to win on their claim that the expulsion policy violated federal laws prohibiting the government from sending people to places where they likely face persecution or torture.

In granting some relief to the migrant families, the judges also questioned the public health rationale of the Title 42 order. Noting this is “March 2022, not March 2020,” the panel said the directive “looks in certain respects like a relic from an era with no vaccines, scarce testing, few therapeutics, and little certainty.”

“To be sure, as with most things in life, no approach to COVID-19 can eliminate every risk. But from a public-health perspective, based on the limited record before us, it’s far from clear that the CDC’s order serves any purpose,” U.S. Circuit Judge Justin R. Walker, a Trump appointee, wrote for the panel.

However, the appeals court disagreed with a core finding of the lower court’s decision against the expulsion policy: that the federal immigration statute does not permit the U.S. to send back people who have already entered the country, but only allows the government to block their “introduction.”

U.S. District Judge Emmet Sullivan of the District of Columbia ruled in September that the federal government lacks the legal authority to expel migrant families under public health laws allowing the government to “prohibit … the introduction of” people to the country.

Citing the Merriam-Webster Dictionary definitions of “prohibit,” Sullivan concluded this statute does not permit the expulsion of those who have already entered.

But just because a migrant sets foot on American soil “doesn’t mean they have been fully ‘introduced’ into the United States,” Walker wrote for the appellate court panel. He concluded federal laws “appear to provide the Executive with ample authority to expel such aliens.”

The panel sent the case back to the lower court to make a final ruling and suggested the judge consider the migrant families’ other argument that the expulsion policy violated the asylum statute. The appeals court said this “may be the closest question in this case,” but the families had not shown they would likely win on this argument at this point.

The other two judges on the panel were Obama-appointees Chief U.S. Circuit Judge Sri Srinivasan and U.S. Circuit Judge Robert L. Wilkins.

The D.C. Circuit paused the effect of Sullivan’s order while litigation continued, which has allowed the government to continue expelling migrant families for nearly two years.

According to Lee Gelernt, lead ACLU attorney for the plaintiffs, the ruling will prevent the government from sending migrant families to Haiti, Central America or other nations without considering the danger they would face there. 

He called the ruling a "huge victory for those fleeing persecution or torture.”

A spokesperson for the Justice Department declined to comment. A representative for the Homeland Security didn’t immediately respond to a request for comment Friday.