Border Restrictions Carry New Path for Families Fearing Torture

Families at the border may have a chance to argue against being turned away, even as US officials must continue swiftly expelling most migrants under the Covid-era Title 42 policy.

The extra consideration for families stems from competing court orders that keep the pandemic-related border restriction in place but change the way it’s enforced.

A federal district court in Louisiana last week foiled the Biden administration’s plans to end Title 42, preserving the policy while litigation in that court proceeds. A separate decision from the US Court of Appeals for the D.C. Circuit bars border officials from expelling families to places they fear persecution or torture; the order took effect Monday.

“If it is implemented properly, it could save lives,” American Civil Liberties Union lawyer Lee Gelernt, who represents migrant families, said of the D.C. Circuit ruling. “Right now there’s no screening process at all for persecution, which means that countless families have been sent back to danger, including to places like Haiti.”

Those allowed to stay in the US would live in some legal limbo, without the benefits afforded to migrants who are granted asylum.

Photographer: Guillermo Arias/AFP via Getty Images

Asylum seekers, mostly from Haiti, stand outside the Espacio Migrante community center in Tijuana, Baja California State, Mexico, on May 23, 2022.

Gelernt and other immigrants’ rights lawyers are monitoring how the Department of Homeland Security conducts screening to ensure the agency complies with the court’s order. GOP state officials who led the fight to preserve Title 42, meanwhile, will be watching to ensure DHS doesn’t shy away from expulsions.

DHS Secretary Alejandro Mayorkas released a video Tuesday emphasizing that “current restrictions at the U.S. border have not changed.” But he warned that border numbers would rise from “confusion over recent court orders and as smugglers continue to peddle misinformation to make a profit.”

Border officials have encountered high numbers of migrant arrivals for the past year, breaking some monthly and annual records. US Customs and Border Protection logged more than 230,000 encounters at the southwest border in April, exceeding that month’s totals for the three previous years.

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‘Manifest’ Fear

DHS has shared limited details so far about how it will ensure families aren’t returned to places they face persecution or torture. DHS spokesperson Eduardo Maia Silva said migrant families who “manifest” a fear of torture will now be referred for follow-up screening or processing under traditional immigration enforcement authorities known as Title 8.

Under Title 8, families could end up on a variety of paths, including deportation, detention, release into the US, and extended immigration court proceedings. Anyone without a legal basis to stay in the US will face deportation proceedings, Silva said.

DHS already allows many families to stay due to logistical and diplomatic reasons that prevent the US from expelling them to other countries; screening for fear of persecution or torture would likely broaden that pool, said Aaron Reichlin-Melnick, a senior policy counsel at the nonprofit American Immigration Council.

DHS didn’t respond to a question about whether the agency will proactively ask migrant families whether they fear persecution or torture, or leave it to them to bring it up. Gelernt said he understood that DHS didn’t plan to ask routinely. DHS’s assertion that it will assess migrant families who “manifest” a fear indicates border officials will consider nonverbal behavior as well as verbal expressions of fear.

That approach has roots in other enforcement of immigration law. The Coast Guard, for example, has trained personnel to identify verbal and nonverbal expressions of fear from migrants caught at sea.

Not Asylum

Gaining protection through persecution and torture screening isn’t the same as seeking asylum, to which migrants have generally lacked access since Title 42 took effect in 2020.

Individuals who are granted asylum can get a Social Security card, apply for a work permit, travel abroad with permission, and enjoy some other flexibility. Individuals who get protection after persecution or torture screening—either under the Convention Against Torture or a more generic review for “withholding of removal”—don’t get deported but are left in long-term legal limbo.

Still, the protections are meaningful to those families who would otherwise be sent back into harm’s way, immigrants’ rights lawyers argue.

“The key takeaway is that you cannot eliminate all protections under Title 42,” Reichlin-Melnick said. “You have to give people at least some process.”

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloombergindustry.com

To contact the editors responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com; Robin Meszoly at rmeszoly@bgov.com