US can’t expel endangered migrant families over Covid concerns, appeals court rules

WASHINGTON (CN) — A pandemic-era U.S. border policy was thrown for a loop by the D.C. Circuit on Friday after a three-judge panel ruled the Biden administration can no longer unilaterally expel migrant families on the basis of public health concerns if those families face danger in their home countries.

Since the onset of the pandemic, both the Trump and Biden administrations have relied on Title 42, an obscure 1944 provision of public health law, to automatically remove thousands of migrants at the U.S.- Mexico border, citing concerns about the spread of Covid-19.

The ruling will allow the U.S. government to use Title 42 to continue turning away individual migrants and migrant families without minor children or who do not face the threat of persecution or torture without providing the offer of asylum. But the exception carved out in the panel's decision will require consideration of migrant families' threat of danger upon expulsion and opens a door for claims that a similar standard should apply to individual migrants.

"The Executive cannot expel aliens to countries where their 'life or freedom would be threatened' on account of their 'race, religion, nationality, membership in a particular social group, or political opinion, or where they will likely face torture,'" U.S. Circuit Judge Justin Walker, a Donald Trump appointee, wrote for the unanimous panel.

Using the statements made during oral arguments by attorneys representing the executive branch, the court referenced the executive's own admissions that families involved in the case may face danger as a result of Title 42.

"It admits it is 'aware of . . . the quite horrific circumstances that non-citizens are in in some of the countries that are at issue here,'" Walker wrote of the U.S. government. "And for covered aliens who have already been forced to walk the plank into those places, the record is replete with stomach-churning evidence of death, torture, and rape."

The panel's ruling narrows a previous injunction by a federal judge in Washington and sends the case back to that district court for further consideration on whether Title 42 "is arbitrary and capricious."

Walker expressed skepticism about the government still citing Covid-19 concerns as the basis for expelling migrants en masse, noting that vaccinations, masking and testing are widespread precautions that border agents have access to. In February, the Centers for Disease Control and Prevention cited the omicron variant as a reason for the order remaining in effect.

"The CDC’s § 265 order looks in certain respects like a relic from an era with no vaccines, scarce testing, few therapeutics,
and little certainty," Walker wrote. "The evidence of the difference between then and now is considerable."

The American Civil Liberties Union, which is arguing on behalf of the migrant families in the case, has repeatedly asserted there is no significant public health reason for the continued use of Title 42 and the D.C. Circuit seemed to agree.

"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," the ruling states.

Walker was joined on the panel by U.S. Circuit Judges Sri Srinivasan and Robert Wilkins, both appointees of Barack Obama.

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