Migrant families fleeing persecution can’t be deported under pandemic policy, court rules
The U.S. government cannot expel migrant families on public health grounds under a pandemic-era policy directive if they face persecution or torture upon returning home, a federal appeals court ruled on Friday, dealing a partial blow to the Biden administration.
The administration has repeatedly cited the Trump-era policy known as Title 42 to explain its expulsion of migrants crossing the U.S. southern border.
The return of thousands of Haitians arriving at the border last fall sparked intense criticisms of the policy from immigration advocates and others. Members of Congress, public health experts and immigration groups have publicly condemned the policy as politically motivated and harmful to immigrants, and questioned whether it has had any effect in preventing COVID-19 from spreading into the United States.
Under U.S. law, the government “cannot expel those aliens to places where they will be persecuted or tortured,” the U.S. Court of Appeals for the District of Columbia Circuit wrote in its 32-page ruling.
“Nor does it give them a path to asylum,” the ruling continued. “Nor does it stop the executive from detaining them. Nor does it curb the executive’s power to expel them to a country where they will not be persecuted or tortured.”
The White House, Department of Homeland Security and Centers for Disease Control and Prevention declined to comment.
Randy McGrorty, a longtime immigration lawyer and executive director of Miami-based Catholic Legal Services, told the Miami Herald that the ruling could mandate the screening of immigrants to check for threats to their life or freedom.
“Providing the legal safeguard of screening individuals with legitimate fear of persecution or torture claims is a step forward towards complying with international law, treaty obligations, and basic human decency,” he said.
What is Title 42?
The public health law was first invoked under the Trump administration in March 2020. While the CDC said in February 2021 that Title 42 did not apply to unaccompanied immigrant children, the order is still in effect. DHS has previously said that the CDC determines the continued use of the public health provision.
The vast majority of Title 42 expulsions have occurred at the U.S.-Mexico border and involved single adults. In total, since the provision was put in place at the onset of the pandemic, there have been over 1 million expulsions based on the public health measure, according to data from U.S. Customs and Border Protection.
The appeals court also questioned the government’s argument that Title 42 has actually slowed the spread of COVID-19.
Judge Justin Walker, who wrote the decision on behalf of a three-judge panel, likened Title 42 to a “relic from an era with no vaccines, scarce testing, few therapeutics, and little certainty,” noting that it was now March 2022, not March 2020, at the beginning of the pandemic.
“We are not cavalier about the risks of COVID-19. And we would be sensitive to declarations in the record by CDC officials testifying to the efficacy of the [rule.] But there are none,” he wrote.
Thousands deported to Haiti
Last year, the Biden administration made Haitians living in the United States eligible again for Temporary Protected Status, a designation which allows foreign nationals from countries in turmoil to temporarily live and work in the United States.
Immigration advocates and lawyers for Haitians were trying to get a better understanding of the court’s ruling on Friday, while at the same time hoping the administration would not appeal and allow the decision to stand.
“We think that the administration should adhere to the decision of the court. We want a complete overhaul of Title 42,” said Guerline Jozef, co-founder of Haitian Bridge Alliance, an immigration advocacy collective with a focus on Haitian and Black immigrants. She told the Miami Herald that while the ruling offered some protection for families, advocates remained “extremely concerned” as Haitian families continue to be separated and expelled from the United States.
As the court decision was being made public in the United States, there was a Title 42 flight filled with Haitian immigrants arriving in Port-au-Prince from Texas, raising questions about whether the court ruling applied to the flight. There were 111 people on the flight: 56 men, 37 women, 8 boys, and 10 girls, according to the Office of National Migration in Haiti.
“This ruling proves what we have been fighting for so long,” Jozef said, “both Trump and Biden have used Title 42 as a cruel, inhumane tool to prevent some of the most vulnerable people from seeking safety.”
This story was originally published March 4, 2022 at 7:18 PM.
