San Antonio Express-News (Sunday)
Courts give conflicting orders on asylum
A federal appeals court panel in the District ruled unanimously Friday that the Biden administration may continue expelling migrant families from the United States under a pandemic public health order but not into countries where they may face persecution — citing “stomach-churning evidence” that the U.S. government has delivered people to places where they face rape, torture and even death.
Hours later, a federal judge in Texas said the Biden administration also cannot exempt children and teens traveling without a parent from the expulsion policy. Homeland Security officials decided last year that was too risky to expel children traveling alone.
The decisions — with appellate judges saying there was no evidence that the public health order known as Title 42 prevents the spread of the coronavirus, and a lower-court judge suggesting that an influx of minors was harming the state of Texas during the pandemic — intensify pressure on the Biden administration and the courts to resolve the issue. President Joe Biden has promised to reopen the borders to asylum processing, but his administration stalled when apprehensions at the southwest border hit record highs last year.
The conflicting decisions also injected legal uncertainty into the future of rules that deny migrants a chance to seek asylum on grounds that it risks spreading COVID-19.
Since March 2020, U.S. authorities have expelled migrants more than 1.6 million times at the border with Mexico without giving them a chance to seek humanitarian protections. The Biden administration has extended use of Title 42 authority, named for a 1944 public health law.
The U.S. Court of Appeals for the District of Columbia Circuit said COVID-19 concerns could stop migrant families from getting asylum to remain in the United States.
But, the judges said, migrants can seek other forms of humanitarian protection that would spare them being sent home if they are likely to be tortured or persecuted. Under a benefit called “withholding of removal” and the United Nations Convention Against Torture, migrants may be sent to third countries deemed safe alternatives if their homelands are too dangerous.
A panel of three judges — two appointed by President Barack Obama and one by President Donald Trump — sharply questioned the Biden administration’s use of Title 42.
Judge Justin Walker, a Trump appointee who wrote the unanimous ruling, noted that health concerns have changed dramatically since the Centers for Disease Control and Prevention announced the asylum restrictions two years ago. He wrote that it was “far from clear that the CDC order serves any purpose” for protecting public health.
“The CDC’s order looks in certain respects like a relic from an era with no vaccines, scarce testing, few therapeutics and little certainty,” he wrote.
Walker noted that the Biden administration hasn’t provided detailed evidence to support the restrictions.
“We are not cavalier about the risks of COVID-19. And we would be sensitive to declarations in the record by CDC officials testifying to the efficacy of the order. But there are none,” he wrote.
In the other ruling, U.S. District Judge Mark Pittman, a Trump appointee, sided with the state of Texas, which argued that President Joe Biden wrongly broke with Trump by exempting children traveling alone for humanitarian reasons. He noted the increase in unaccompanied children at the border after the change.
Pittman, who is based in Fort Worth, said it was “beyond comprehension” that the case was even being argued. He said “there should be no disagreement that the current immigration policies should be focused on stopping the spread of COVID-19.”
The Justice Department declined to comment on either ruling.
Immigration advocates claimed at least a partial victory for the ruling by the appeals court.
“Today’s decision did not strike down Title 42, but it creates legal and procedural safeguards to protect immigrants. Moving forward, immigrants cannot be deported without an assessment of whether they will be safe,” said Ivan Espinoza-Madrigal, executive director of Lawyers for Civil Rights.
Lee Gelernt of the American Civil Liberties Union, who argued the appeals court case on behalf of asylum-seeking families, called the decision “an enormous victory.” He said the Texas ruling “is wrong and puts children in grave danger.”
Advocates of immigration restrictions took comfort in the Texas ruling.
“This is a truly historic
victory, but we have a long, long, long way to go to end the administration’s crusade to eradicate our sovereignty,” said Stephen Miller, an architect of Trump’s immigration policies who is now president of America First Legal, a legal advocacy group.
Mexico accepts migrants expelled under Title 42 who are from Mexico, Guatemala, El Salvador and Honduras. The U.S. can expel migrants from other countries, but it is more difficult because of costs, logistical issues
and diplomatic relations. The number of asylum-seekers from Cuba, Nicaragua and Venezuela — countries with frosty relations with the U.S. — has grown.
Many immigration groups, as well as some people inside the Biden administration, see Friday’s appeals court decision as the beginning of the end of the public health rule, as the court opinion could make it harder for the administration to justify that single adults who face persecution
or torture should be expelled.
After that ruling was issued, some officials at the Department of Homeland Security were summoned to join a call with the department’s secretary, Alejandro Mayorkas, to discuss “the end of Title 42,” according to a person familiar with the internal discussion, who spoke on the condition of anonymity in order to discuss internal matters.
Immigration and human rights advocates have said that President Joe Biden has followed Trump in 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 retained by the Biden administration so they did not need to screen people for persecution,” Gelernt said, “and could just immediately load families onto planes to Haiti and other dangerous countries without determining what would happen to them.”
One of the highest-profile examples was in September, when thousands of Haitians were expelled back to their country without being given the chance to explain why they feared returning to an impoverished nation that has suffered natural disasters and, in some parts, is run by gangs.
In recent weeks, lawmakers from the president’s own party have been putting pressure on the administration to lift the rule.
White House officials have said it falls to the Centers for Disease Control and Prevention to decide when the public health rule can be lifted. The agency’s next review of the policy will be in April.