Mar 4, 2022 - Politics & Policy

Court: U.S. cannot expel migrant families to regions that risk their persecution

Photo of people walking toward DHS patrol cars under the cover of night
Migrants walk towards a processing site after they crossed the Rio Grande into the U.S. on Nov. 17, 2021 in La Joya, Texas. Photo: Brandon Bell via Getty Images

A federal appeals court panel ruled unanimously Friday that the Biden administration can continue expelling migrant families "for now" under the Trump-era Title 42 public health policy but only to countries where they don't risk persecution or torture.

Why it matters: The ruling will offer more protection to families fleeing danger, the American Civil Liberties Union (ACLU) said Friday. The surge in illegal crossings at the southern border is largely driven by violence, poverty and disasters, according to the Washington Post.

Details: The D.C. Circuit Court of Appeals partially affirmed a lower court order that ruled against the federal government's expulsion of migrant families at the U.S.-Mexico border.

  • The Title 42 policy, which the Centers for Disease Control and Prevention (CDC) implemented at the start of the pandemic, allows the U.S. to immediately expel migrants who enter the country illegally without legal permission. It effectively turned away any asylum seekers, CNN notes.
  • The ACLU had sued the administration on behalf of six migrant families who were turned away at the southern border.

What they're saying: "To be sure, as with most things in life, no approach to COVID-19 can eliminate every risk," the three-judge panel on the U.S. Court of Appeals for the District of Columbia Circuit wrote in the opinion.

  • "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. For now, the Executive may expel the Plaintiffs, but only to places where they will not be persecuted or tortured."
  • Citing "stomach-churning evidence" of the U.S. sending migrants to regions where they face assault and death, the judges wrote that expelling migrants to dangerous areas goes against federal law.
  • The federal government itself is "aware of … the quite horrific circumstances that non-citizens are in in some of the countries that are at issue here."

Immigrant rights groups hailed the ruling, but still called on the administration to end Title 42 entirely.

  • "We have argued from the beginning that the Title 42 policy is illegal and inhumane, and every court to address the issue has agreed," Lee Gelernt, an attorney who argued the appeal and deputy director of the ACLU’s Immigrants’ Rights Project, 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."
  • "Today’s ruling affirms what we know to be true: The right to seek protection is nonnegotiable, and the government cannot use a sham public health order as cover to expel refugees to danger," added Neela Chakravartula, managing attorney at the Center for Gender & Refugee Studies.
  • "It is shameful that the Biden administration has fought so hard to defend the Title 42 policy, and they should reverse course immediately."
  • The Department of Homeland Security did not immediately return a request for comment.
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