Biden Administration Renews Trump-Era Migrant Expulsion Policy, as ACLU Fights Back

By Sabrina Rodriguez, POLITICO

04 August 21

The rights group is resuming a lawsuit against the administration for its use of a public health order to expel migrants. Biden officials have no plans to stop using it.

he Biden administration on Monday renewed a public health order that allows U.S. border agents to quickly expel migrants arriving at the border as the ACLU is resuming a legal challenge against its continued use.

The Centers for Disease Control and Prevention has issued an updated order that maintains there is a public health justification, given the ongoing pandemic, for the Biden administration to continue kicking out migrants without allowing them to seek asylum. The order can remain in effect indefinitely.

It comes after the ACLU on Monday announced it would go back to court after negotiations with the Biden administration fell apart. The ACLU for months has pressed Biden officials to stop using the public health authority to expel migrant families.

“It’s clear there’s no end in sight to Title 42 and we will pursue an immediate injunction,” Lee Gelernt, deputy director of the ACLU's Immigrants' Rights Project and lead attorney on the case. “The Biden administration asked for some time to repair the damage done by the Trump administration to the asylum process, but it has now been seven months. That’s a more than sufficient amount of time.”

Last week, the administration backed away from plans to begin phasing out its use of Title 42. It was expected to stop expelling migrant families at the end of July, but the fast-spreading Delta variant of the coronavirus and surging numbers of border apprehensions derailed those plans.

Former President Donald Trump first made use of Title 42 at the start of the pandemic to expel migrants without allowing them to seek asylum. Shortly after Biden took office, the ACLU agreed to pause litigation against the administration so it could negotiate an end to the use of the public health authority.

Democratic lawmakers, immigrant advocates and public health experts for months have urged the Biden administration to rescind the policy, saying its use is unlawful, inhumane and not justified by public health considerations. Migrants, they say, could be tested and isolated when they enter the country to help prevent the spread of Covid-19.

In a joint motion filed in the U.S. District Court for the District of Columbia on Monday, the ACLU and Biden administration agreed that negotiations “reached an impasse.” The Texas Civil Rights Project, RAICES, Center for Gender & Refugee Studies, Oxfam, ACLU of Texas and ACLU of the District of Columbia are also working with the ACLU on the lawsuit.

The Biden administration, for its part, argued on Monday that lifting Title 42 for migrant families would “exacerbate overcrowding at DHS facilities and create significant public health risks,” given the fast-spreading Delta variant and the record number of migrants arriving at the border. There’s also been a significant uptick in the number of migrants testing positive for Covid-19, an administration official said.

“The Department lacks sufficient capacity to safely hold and process all individuals seeking to enter the United States during the global pandemic if the U.S. Government were restricted in its ability to implement the CDC Order,” David Shahoulian, assistant secretary for the border and immigration policy at the Department of Homeland Security, said in a declaration filed to the court on Monday.

Migrant families have been apprehended at the U.S.-Mexico border more than 231,000 times this year, according to U.S. Customs and Border Protection figures. Of those, more than 70,000 — about a third — of the families were expelled back to Mexico using the Title 42 order.

In recent months, Mexico has been increasingly more resistant to accepting families expelled from the U.S. under Title 42, resulting in a majority of families entering the U.S. to be permitted to remain in the country. Biden, for his part, has previously said migrant families should “all be going back.”

Last week, the Biden administration began to speed up deportations for some families who cross the U.S.-Mexico border and cannot be expelled under Title 42, a move that further frustrated immigrant advocates and attorneys. The practice, known as expedited removal, has been used by Democratic and Republican administrations to allow for U.S. border officials to expel migrants without a hearing before an immigration judge.

In a separate court filing for another case on Monday, the Biden administration acknowledged that Homeland Security Secretary Alejandro Mayorkas and Attorney General Merrick Garland would not meet the 180-day deadline, set for Monday, for a review of the U.S. asylum system. Biden, in a February executive order, requested the review.

The lawsuit was brought on by Make the Road in 2019 to fight the Trump administration’s efforts to expand expedited removal. Both sides have agreed to keep the case on pause while the Biden administration reviews its policies. Now, the Biden administration said that DHS now anticipated completing the review by or before Oct. 29.