Court challenge to ‘expulsion’ order looms over border policy
WASHINGTON — The Biden administration has relied on a Trump-era public health directive to continue turning away most people who try to cross the southwest border.
A lawsuit the administration also has inherited, however, threatens to bar the government from applying that directive, known as Title 42, to migrant families — which could undermine the administration’s border strategy and spur a new detention challenge.
Currently, the Biden administration has formally exempted unaccompanied minors from the directive, or migrants under 18 who arrive without their parents. Rising numbers of minors coming to the U.S. alone have strained federal agencies struggling to increase capacity to house those children.
On March 30, the most recent government data available, more than 12,900 kids were in the custody of the Department of Health and Human Services, which oversees unaccompanied migrant children after they are picked up by border officials. More than 5,200 additional minors awaited transfer to HHS in overcrowded border facilities.
“If Title 42 were to be ruled — in the way it’s being used — illegal and taken down immediately, the Biden administration would have an immediate, major operational problem at the border,” said Theresa Cardinal Brown, managing director of immigration and cross-border policy at the Bipartisan Policy Center and a former official at the Department of Homeland Security.
President Joe Biden has promised to revamp the U.S. asylum system. He wants to set up more refugee processing centers abroad and move away from immigration detention in favor of case management programs.
The Biden administration has reversed some of President Donald Trump’s signature asylum policies, such as the program requiring asylum-seekers to “remain in Mexico” as they wait out their U.S. immigration cases. But it has left Title 42 in place for families and single adults — and even continued to defend the directive in D.C. federal court.
This tactic has allowed the administration to buy itself some “breathing room” to build up those processes before it fully resumes asylum at the border, Brown said.
The American Civil Liberties Union filed a legal challenge to the expulsion policy on behalf of migrant families during the final days of the Trump administration.
The suit claims that the Title 42 directive, whose authority predates much of the federal immigration statute, conflicts with provisions barring the U.S. from sending individuals back to countries where they would be persecuted.