Border authorities can continue Trump-era migrant expulsions

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The federal government can keep deporting undocumented migrant families under a Trump-era public health policy — but will be barred from sending them back to a country where their lives could be in danger, a federal appeals court ruled Friday. 

The ruling by the DC Circuit Court of Appeals will allow the Biden administration to continue using the policy, known as Title 42, which has been in effect since March 2020.

However, the decision by the three-judge appellate panel will likely require federal authorities to hold more migrant families while screening them to ensure they’re not being sent to a country where they “will likely be persecuted or tortured,” in the words of the ruling.

Title 42 currently allows border agents to “immediately expel” migrants who cross the US border illegally without allowing them the chance to claim asylum. 

Parents-to-be from Haiti stand at a gap in the U.S.-Mexico border wall after having traveled from South America to the United States on December 10, 2021 in Yuma, Arizona.
Border authorities can’t deport migrants to dangerous countries, the panel wrote in its unanimous decision.
John Moore/Getty Images

The three-judge panel, led by US Circuit Judge Justin Walker, wrote in its unanimous decision that border authorities can’t deport the migrants to dangerous countries because it could violate a United Nations anti-torture convention. 

“It is likely that [Title 42] grants the Executive sweeping authority to prohibit aliens from entering the United States during a public-health emergency; that the Executive may expel aliens who violate such a prohibition; and that under … the Convention Against Torture, the Executive cannot expel aliens to countries where their ‘life or freedom would be threatened,’” the decision read.

The judges added that the Title 42 order “looks in certain respects like a relic from an era with no vaccines, scarce testing, few therapeutics, and little certainty … We cannot blindly defer to the CDC in these circumstances.”

Haitian families walk through a gap in U.S.-Mexico border wall on December 07, 2021 into Yuma, Arizona.
Haitian families walk toward a gap in the US-Mexico border wall into Yuma, Arizona, on Dec. 7, 2021.
John Moore/Getty Images

“To be sure, as with most things in life, no approach to COVID-19 can eliminate every risk,” the ruling concludes. “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.”

The ruling was handed down in a case brought by the American Civil Liberties Union, which argued Title 42 could not be used to expel migrant families without giving them a chance to apply for asylum. 

In a statement, the ACLU called on the Biden administration to implement the court’s ruling immediately and scrap Title 42 completely.

“This is an enormous victory,” said ACLU attorney Lee Gelernt. “We have argued from the beginning that the Title 42 policy is illegal and inhumane, and every court to address the issue has agreed. 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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