WASHINGTON — A public health rule that has prevented many undocumented migrants from entering the country during the pandemic was dealt a blow Friday when a federal appeals court said it could no longer be used to evict families. to countries where they would be persecuted or tortured.
The ruling, issued by a panel of the U.S. Court of Appeals for the District of Columbia Circuit, partially confirms a previous decision in an pending lawsuit and applies only to migrant families traveling with minor children. While it allowed the Biden administration to enforce the rule, the three-member panel questioned whether it was still necessary, noting that it “looks in some ways like a holdover from an era with no vaccines, scarce testing, few therapies and little certainty.”
Later on Friday, a The federal judge in the Northern District of Texas issued a rule that dealt another blow to the Biden administration: He ordered the government to stop exempting migrant children who arrive at the border without a parent or guardian from the public health rule. The administration has seven days to appeal.
Immigration attorneys said the District of Columbia Circuit Court of Appeals ruling meant that migrant families should now be given an opportunity to express their fears of persecution or torture, which could be followed by an interview with an asylum officer or a court date. . with an immigration judge – steps largely denied since the public health rule was introduced in March 2020.
The Biden administration may continue to use the rule, known as Title 42, for families not facing persecution, and for single adults, who make up the majority of migrants displaced under it. Critics have said the rule, introduced by President Donald J. Trump, was his most successful attempt to restrict asylum.
Still, many immigration groups, as well as some people within the Biden administration, see Friday’s appeals court decision as the beginning of the end of the public health rule, as the court’s opinion could make it harder for the administration to find those single adults who are persecuted or tortured should be deported.
After that ruling was issued, some Department of Homeland Security officials were called to participate in a meeting with Department Secretary Alejandro N. Mayorkas to discuss “the end of Title 42,” according to a person who familiar with the internal discussion, who spoke on condition of anonymity to discuss internal affairs.
Lee Gelernt of the American Civil Liberties Union, one of the lead attorneys for the plaintiffs in the case, called Friday’s development a “huge victory.
However, he said the ruling in Texas was “wrong and brutal, seriously hurting young children themselves”.
Immigration and human rights advocates have said President Biden has followed Mr Trump by using the rule to control illegal immigration, a political vulnerability for him — not to stop the spread of the coronavirus.
“It was enacted by the Trump administration and kept by the Biden administration so they wouldn’t have to screen people for prosecution,” Mr Gelernt said, “and could just immediately load families on planes to Haiti and other dangerous countries without having to determine what would happen to them.”
One of the most notable examples was last September, when thousands of Haitians were displaced back to their countries without a chance to explain why they feared returning to an impoverished country that has suffered from natural disasters and, in some sharing, is run by gangs.
In recent weeks, lawmakers from the president’s own party have put pressure on the government to lift the rule. Human rights advocates said the decision in Texas makes it even more important that the rule be lifted.
The Biden administration did not respond to questions about the ruling or the government’s next steps.
White House officials have said it will be up to the Centers for Disease Control and Prevention to decide when the public health rule can be lifted. The next policy review by the agency will be in April. Brandon Judd, the head of the Border Patrol union, said officers heard the rule would go away in April.
The Biden government has maintained order for all migrants except for children who arrive at the border without a parent or guardian, although in practice the government has allowed many families to stay despite the rule. Since the rule came into effect, more than 190,000 migrant children without a parent or guardian have been allowed into the country and placed in shelters before being reunited with relatives or other sponsors.
While more than 181,000 migrant families have been expelled under the public health rule, many more have been let into the country to be deported for a variety of reasons, including humanitarian exceptions.
Many Republicans praised the rule’s use, calling it a successful policy. Last year, Texas Republican Senator Ted Cruz introduced legislation to make it a law.
Critics of the rule, including a number of public health experts, have said deporting migrants has no public health benefits in preventing the spread of Covid-19 in the United States, especially now. The appeals court seemed to agree.
“To be sure, as with most things in life, no approach to Covid-19 can rule out every risk,” the panel wrote. “But from a public health standpoint, based on the limited record ahead of us, it’s far from clear that the CDC’s order serves any purpose.”
While the number of Covid-19 cases and hospitalizations has declined recently in the United States, the number of migrants attempting to enter the country has not declined significantly. Officials expect even more this year than last year.
And Title 42 expulsions have proven to be an efficient way to expel undocumented immigrants from the country at a time when record numbers have crossed the southwestern border.
“While this ruling could be considered a victory for both sides, it is an event that pales in comparison to a train coming across the track,” said RJ Hauman, head of government relations for the Federation for American Immigration Reform, a conservative. group. “As bad as the border crisis is now, without title 42 it would be a lot worse.”
Judd, the head of the Border Patrol union, said Friday’s appeals court decision would not have an immediate effect on operations at the border, as most migrant families are already being allowed into the country to undergo removal procedures. But if the authority falls away completely, he said, “it won’t be good.”
Officials have argued that border agents are overwhelmed and that existing border stations are unable to detain all migrants to be processed in the country, a laborious and time-consuming process. Some border officials fear that without the rule they will be completely overwhelmed and buried in paperwork instead of patrolling the border.
Interviewing migrants about their fears of torture or persecution can take days or even a week, requiring space where migrants can be humanely detained until they can be interviewed, said Aaron Reichlin-Melnick, the policy adviser to the United Nations. US Immigration Council.
“Given this operational reality, conducting interviews with reasonable fear of families will be incredibly difficult,” said Mr. Reichlin-Melnick, adding that “the most likely outcome would be to simply release families expressing fear of persecution.” to leave. “
Mostly it’s singles who get turned away, including many returning crossers who so far have not received any penalties for being caught more than once. The government estimates that about 30 percent of people caught illegally crossing the southwestern border have been caught before.
One idea under consideration in the administration is to start punishing and detaining repeat offenders, according to someone familiar with the internal discussions.