(Updates throughout with additional reporting.)
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U.S. officials can’t use a public health order to expel migrants to places where they may be persecuted or tortured, federal judges said in a partial win for immigrants’ rights advocates.
The U.S. Court of Appeals for the District of Columbia Circuit on Friday partially upheld a lower court’s 2021 decision that said the use of Title 42 for families at the border should be suspended until courts finish reviewing legal challenges to the policy. The D.C. Circuit said the Biden administration can continue expulsions, “but only to places where they will not be persecuted or tortured.”
The public health order, invoked by the Centers for Disease Control and Prevention, allows the Department of Homeland Security to turn away asylum-seekers and other migrants. President Donald Trump initiated the policy at the beginning of the Covid-19 pandemic, and the Biden administration has largely embraced it, dismaying immigrants’ rights groups.
The D.C. Circuit’s mixed decision was cause for both disappointment and celebration from advocates.
“Despite the fact that the government has now been granted the go-ahead by the D.C. Circuit to carry out Title 42 expulsions of families, operationally speaking this decision will be a significant blow to DHS’s ability to carry out those expulsions,” said Aaron Reichlin-Melnick, policy counsel at the American Immigration Council.
“Fewer families will be expelled,” he added. “The magnitude of that is unclear.”
DHS didn’t immediately respond to a request for comment on how the decision will affect operations at the southern border. Further proceedings over the use of Title 42 against families will continue in federal district court.
“We look forward to working with our allies to hold the Biden administration accountable to implement this decision,” said Diana Kearney, senior legal adviser at Oxfam America, which is involved in the litigation.
The three-judge panel handling the case also tackled the government’s justification for using Title 42, expressing skepticism about arguments that it advances public health.
“To be sure, as with most things in life, no approach to COVID-19 can eliminate every risk. 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,” Judge Justin Walker wrote for the court.
A federal district court ordered a stop to the policy for families last September, and the Justice Department quickly appealed the decision. Covid-19 variants and crowded migrant processing sites necessitate the continued use of Title 42, Justice Department lawyers told the D.C. Circuit during oral arguments in January.
An American Civil Liberties Union lawyer representing immigrants argued that the Biden administration is using Title 42 not as a public health measure, but as a border control policy. U.S. border officials reported record levels of migrant encounters in 2021.
The case is Huisha-Huisha v. Mayorkas, D.C. Cir., No. 21-5200, 3/4/22.
To contact the reporter on this story: Ellen M. Gilmer in Washington at firstname.lastname@example.org