U.S. border officials have until the end of April to propose a plan to respond to a new court ruling that bars them from turning away migrant families who illegally cross the southern border amid the COVID-19 pandemic.
The U.S. Court of Appeals for the District of Columbia ruled on Friday that the Biden administration can no longer immediately expel migrants who illegally cross the border, as has been policy over the past two years. Instead, the appeals court said migrants should be screened in interviews, and those who claim they face persecution or torture if they return to their home country may only be removed from the United States and sent to safe, third-party countries.
The deadline for implementation is April 25, according to a spokeswoman for the American Civil Liberties Union, which sued in 2020 to stop the expulsions. U.S. Customs and Border Protection will have to add the additional step of screening migrants to see if each person can be returned to Mexico or if they meet the asylum threshold and must be flown to a different country, according to Lee Gelernt, an attorney who argued the appeal and deputy director of the ACLU’s Immigrants’ Rights Project.
“This is an enormous victory. We have argued from the beginning that the Title 42 policy is illegal and inhumane, and every court to address the issue has agreed,” Gelernt said in a statement. “The court’s ruling leaves no doubt that this brutal policy has resulted in serious harm to families seeking asylum and must be terminated.”
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Those who meet the initial bar for asylum would likely be flown to a safe Third World country by Immigration and Customs Enforcement, which handles deportations of illegal immigrants. However, it is not clear if ICE has the operational capacity to undertake the possibly high number of removal flights.
The decision was mostly a win for the Biden administration, as it allows the government to continue turning away asylum-seeker families who came from Mexico, El Salvador, Guatemala, and Honduras. However, because the Mexican government does not allow the U.S. to push migrants from countries beyond those four into Mexico, the U.S. has been forced to detain and release many out of Border Patrol stations. As the numbers of migrants arriving from countries such as Cuba, Russia, Venezuela, and Brazil have soared in recent months, this new court ruling will give U.S. authorities a chance to expel people from those countries who had been largely ineligible for removal. However, that is only if the U.S. can set up shop fast enough.
In March 2020, the Trump administration invoked Title 42 of the Public Health Services Act of 1944, which gave the Centers for Disease Control and Prevention the ability to deny the admission of people and goods who pose a risk of spreading a communicable disease. In that time, U.S. officials have expelled people 1.6 million times, though some were turned away more than once.
Immigrant activists and lawyers have protested using this public health policy, saying it does not protect asylum-seekers. One such organization, Refugees International, had called on the Biden administration to begin screening asylum-seekers immediately following the court’s order.
“Refugees International calls on the Biden administration to implement the ruling immediately given the court’s finding that those expelled have ‘walk[ed] the plank’ to ‘death, torture, and rape,’” said Dr. Yael Schacher, Refugees International deputy director for the Americas and Europe, in a statement. “And Refugees International calls on the Biden administration to end the misuse of the Title 42 public health authority, whose purpose in limiting the spread of COVID-19 the court questioned.”
Democrats have urged Biden to end the use of Title 42 because they say it does not allow people to seek asylum at the border, while Republicans want to keep it because it allows border officials to turn away the majority of illegal crossers. However, as long as Title 42 remains in place, illegal immigrants cannot be referred for prosecution for unlawful entry because they must be immediately turned away and not detained. Republicans’ calls to keep Title 42 in place remove any consequence for those crossing illegally.
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Further complicating the matter, a federal judge in Texas ruled last Friday the Biden administration wrongly chose to stop turning away migrant children who show up at the border alone. Texas sued the Biden administration in April 2021 on the basis that not turning away children and releasing them nationwide was prompting an increase in coronavirus cases in the country. U.S. District Judge Mark Pittman of the Northern District of Texas initially denied the state’s motion but granted a preliminary injunction last Friday in a follow-up appeal submitted in August 2021.
