DOJ DEFENDS TRUMP-ERA BORDER POLICY
Lawyer says government should be able to expel migrants under Title 42
The Biden administration in a court hearing this week defended a Trump-era border policy that has expelled hundreds of thousands of migrants since March 2020.
The arguments capped off a year of mixed messaging from an administration that spoke of plans to implement a more humane approach to asylum processing at the U.S.-Mexico border only to keep and in some cases expand deterrence-minded policies created under former President Donald Trump, including the one in question in court on Wednesday.
The policy, known commonly as “Title 42,” came from a pandemic order by the Centers for Disease Control and Prevention and says that border officials can expel people who try to cross into the United states without required travel documents either back to the country they crossed from or to their countries of origin, purportedly to reduce the spread of COVID-19. In practice, that has meant that asylum seekers are sent back to dangerous conditions in Mexico or the countries that they fled.
Under the Biden administration, unaccompanied children are no longer subject to expulsions. But the administration has added to the policy with flights to expel families to other parts of the border from where they crossed or even directly to southern Mexico.
This week’s hearing was part of the administration’s appeal asking a three-judge panel to allow it to continue using Title 42 to expel asylum seekers without giving them the opportunity to request protection. A federal district judge in Washington, D.C., hearing the case brought by the
American Civil Liberties Union on behalf of asylum-seeking families previously ordered a temporary halt to the policy, but that decision was put on hold while the Biden administration appeals.
The panel, made up of Chief Judge Sri Srinivasan and Judges Robert Wilkins and Justin Walker, questioned attorneys in the case for nearly two hours Wednesday. Srinivasan and Wilkins were appointed under former President Barack Obama, and Walker was appointed under Trump.
Sharon Swingle, a lawyer with the Department of Justice, told
the panel of judges that the U.S. government needed to keep using the policy to prevent the spread of COVID-19 because people who cross the border without required travel documents are held in custody in congregate settings where isolation and quarantine are difficult.
Walker kicked off questioning for the panel, pushing strongly back on the government’s position.
“The statute refers to introducing a disease but COVID is unfortunately quite introduced into the United States by this point in time, in particular with regard to Mexico and Canada, which the order applies to,” Walker said. “I don’t know of anything in the record suggesting that COVID is more prevalent in Mexico and Canada than it is in the United States. In addition to that, the order only covers about 0.1 percent of people who cross the Canadian or Mexican border, and I don’t know of anything in the record showing that those 0.1 percent of border crossers are more likely to have COVID than the other 99.9 percent.”
Srinivasan picked up that thread, noting that the order cannot be based on whether migrants might infect people after leaving custody.
“That’s true of all kinds of people who come across the border every minute of every hour of every day,” Srinivasan said.
Wilkins told Swingle that he was “inclined to be very sympathetic” to the government’s argument, but he was concerned that Supreme Court precedent instructs judges to be skeptical of unprecedented actions or power used by the federal government.
The law in question in Title 42 is not part of U.S. immigration codes and was first passed in the 1890s, according to statements made during the hearing, well before the creation of asylum law. Though the Title 42 law existed during previous pandemics including the Spanish flu, it has never before been used to expel people.
The judges also pointed to evidence gathered by the plaintiffs showing that public health experts, including some former CDC officials, did not think the order was necessary for public health.
A 12-page declaration signed by former CDC officials that is included in the case documents asserts that there are ways to mitigate COVID-19 risks during asylum seeker processing, that migrants don’t pose any risk above other types of travelers, and that many migrants are already vaccinated, as are many U.S. residents. Another former CDC official who came forward with information about political interference with the Centers’ recommendations during the pandemic under the Trump administration told Congress that officials at the CDC didn’t believe that Title 42 was necessary even at the time that it was first put into effect.
Many critics have pointed to a xenophobic and racist stereotype of migrants being disease carriers as the origin of the Title 42 order.
Lee Gelernt, an attorney with the ACLU representing the plaintiffs, emphasized the discrepancy between the CDC’s position on congregate settings like basketball stadiums or airplanes and its position on migrants arriving at the border.
“The whole country is open,” Gelernt said. “Onethird of NBA arenas do not require testing or vaccines.”
“This is getting caught up in a debate about immigration,” he added. “It can’t be that these asylum seekers are presenting more of a risk.”
Walker asked Swingle what would happen in a scenario in which someone apprehended at the border was part of a religion that was currently experiencing genocide in Mexico.
“Are you saying that statutory right to withholding of removal would not prevent the U.S. from taking that person from American soil and putting them back in Mexico?” he asked, referring to a form of protection that is, by law, mandatorily given to asylum seekers who qualify for it, unlike asylum itself, which is discretionary.
Swingle responded that the federal government’s position is that the Title 42 law supersedes all immigration law, meaning that the withholding of removal protection would not apply. She did note that under Title 42, if a person says that they will be tortured in Mexico, they are given a screening before being expelled. However, border officials do not ask if migrants believe they will be tortured. The migrants have to speak up on their own in order to access that screening.
Walker also questioned Swingle on what he called a contradiction in the Biden administration’s position. In another federal case, the administration has argued that it should be allowed to end the “Remain in Mexico” program, another Trump initiative, and referred to the harm that migrants often face in Mexico.
Migrants sent to Mexico under Title 42 also face that harm, Walker pointed out. Earlier this month, Human Rights First released an updated report on the policy that found at least 8,705 instances in which migrants expelled by the Biden administration were violently attacked, assaulted, kidnapped, raped or murdered.
Swingle said that the Biden administration deplores those conditions and that its goal is to return to processing asylum seekers at the border.
“This isn’t March 2020. We have widespread, available, effective vaccines. We also have a whole host of testing that wasn’t as widely available — and treatments as well,” Walker said. “I’m not asking whether you agree that these terrible risks exist for these migrants. I’m asking you to sort of square how much you emphasize them in the Remain in Mexico litigation and how much you seem to devalue them with regard to COVID concerns in this litigation.”
Gelernt, in his arguments, told the judges that the government has refused to provide any information about the efforts it might have made to restart processing in a way that mitigates serious COVID-19 risks.