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Courts issue new directives to Biden on border expulsions

A Border Patrol agent holds cellphones wrapped in plastic that belong to undocumented migrants who were apprehended in a field outside Brownsville, Tex., on June 3, 2021. (Sergio Flores/For The Washington Post)
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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 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.

In the first decision issued Friday, the three-judge appeals court panel said the Centers for Disease Control and Prevention had provided no evidence that the Title 42 order blocked the coronavirus. The judges — two appointed by President Barack Obama and one by President Donald Trump — also emphasized that U.S. Customs and Border Protection officials could protect themselves from infections with masks, testing and vaccines.

Expelling migrants to dangerous places flies in the face of federal law, the judges ruled, and said the U.S. government admitted it is “aware of … the quite horrific circumstances that non-citizens are in in some of the countries that are at issue here.”

“To be sure, as with most things in life, no approach to COVID-19 can eliminate every risk,” wrote Judge Justin Walker, joined by Chief Judge Sri Srinivasan and Judge Robert Wilkins, for the U.S. Court of Appeals for the District of Columbia Circuit. “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. For now, the Executive may expel the Plaintiffs, but only to places where they will not be persecuted or tortured.”

The ruling’s impact on border proceedings was unclear, but analysts said it would require the government to introduce new screening procedures for migrants who state a fear of harm if sent back to Mexico or their home countries under the public health rule. U.S. Customs and Border Protection is already operating under significant strain after immigration arrests soared to record levels under the Biden administration.

Later Friday, Judge Mark Pittman, a Trump appointee, ruled that the Biden administration’s decision to exempt minors from being expelled just because they are traveling without a parent was “arbitrary" and "capricious” for failing to adequately consider its impact on Texas, a border state that had sued over the exemption. Texas argued that the record influx of unaccompanied minors that followed burdened them with health care, administrative and criminal justice costs, not to mention the threat of the coronavirus.

Pittman wrote that "border states such as Texas now uniquely bear the brunt of the ramifications” of the policy, though he stayed the order for seven days to allow the government to appeal.

Mexico does not accept the return of unaccompanied minors under Title 42, but U.S. officials could expel them to their home countries. The Trump administration used the Title 42 policy to expel nearly 16,000 unaccompanied minors, records show.

Texas Attorney General Ken Paxton (R) drew support in the case from a conservative advocacy group founded by former Trump White House adviser Stephen Miller. Paxton said on Twitter that the Biden administration’s failure to expel migrant children contributed to a “massive wave of smuggling.”

“Win for Texas & children—loss for Biden & cartels!” Paxton tweeted.

The Department of Homeland Security, which patrols the nation’s ports and borders, and would carry out the order, did not respond to requests for comment on the cases. The Department of Justice, which argued the case in federal court, declined to discuss the rulings.

The Trump administration first issued the Title 42 order to block all migrants from crossing into the United States during the pandemic.

A district court judge blocked the family expulsions last year and the Biden administration appealed, saying the pandemic made it too dangerous to process more applications for safe refuge at the border.

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The American Civil Liberties Union, which filed the lawsuit on behalf of six migrant families turned back at the U.S.-Mexico border, called the appeals court decision Friday an “enormous victory” because lawyers say it means families who were quickly expelled to nations such as Haiti will now have a chance to undergo a more thorough screening at the border to see if they qualify for protection in the United States.

That will probably mean interviews to see if they have valid fear of persecution, and possibly a hearing in immigration court, lawyers said.

“This is a huge victory and no longer allows the Biden administration to use the pretext of public health to deny people seeking protection a hearing,” said ACLU lawyer Lee Gelernt. “Now they have to give people whatever the immigration laws provide for assessing persecution … They have to give screenings. People cannot just be taken and summarily expelled, put on a plane to Haiti, pushed back over a bridge to Mexico.”

The ACLU had also filed a lawsuit to stop the expulsions of unaccompanied minors, but that stalled after Biden exempted them from the policy and now lawyers are considering whether to reactivate it.

Federal officials had argued in the D.C. case that they offer a “limited opportunity” for migrants to seek protection under international protocols such as the Convention Against Torture — which unlike asylum, offers temporary protection from deportation but no path to permanent residency. But the judges said in the ruling that “the parties in this case dispute whether that opportunity exists in practice.”

The judges cautioned in the ruling that the decision is “narrower” than the ACLU wanted. The ruling does not give immigrants a path to asylum or permanent legal status, and it doesn’t prevent officials from detaining migrants or expelling them to other countries where they would not face harm.

The ruling does not take effect until the court formally issues a mandate in the next few weeks, lawyers said.

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Immigration policy analysts said the court’s ruling means Customs and Border Protection will need to begin screening migrant families to determine whether they could face torture or persecution in the countries where it’s planning to expel them to — in most cases their home nations or Mexico.

That could place new strains on the government’s ability to quickly perform those screening checks at a time when the Biden administration has all but stopped holding families in immigration detention facilities. Analysts say it will depend on DHS’s implementation of the court’s ruling.

If U.S. border agents are required to ask migrants if they fear torture or persecution and someone indicates yes, “that will require an interview by an asylum officer, and then the process becomes more logistically challenging,” said Theresa Cardinal Brown, a former DHS official now at the Bipartisan Policy Center in Washington.

If DHS allows U.S. Border Patrol agents to perform the screening, it could have less of an operational impact, she said, but that would probably bring new court challenges.

Muzzafar Chisti, an attorney and senior fellow at the Migration Policy Institute, said the ruling will probably put new pressure on the Biden administration to lift Title 42 and transition to a post-pandemic enforcement system along the border. The administration is preparing to implement changes in the coming weeks that will have asylum officers from U.S. Citizenship and Immigration Services make initial rulings on migrants’ claims for humanitarian protection, rather than the backlogged U.S. immigration court system.

“It creates more of an incentive for the administration to put in effect the new asylum rule, which would end the need to expel people,” he said.

The Biden administration continues to expel the majority of single adult migrants who cross the Mexico border without authorization — though lawyers said the legal reasoning in Friday’s decision could imperil that policy as well if another lawsuit is filed. But in recent months, authorities have been releasing most migrants who cross the Mexico border as part of a family group, according the government data, allowing them to remain in the country while their claims for humanitarian protection are pending with immigration courts.

U.S. Customs and Border Protection detained 31,795 migrants in January along the southern border who arrived as part of a family group, and the agency used its Title 42 powers to expel 26 percent, data shows. In December, 51,736 crossed the border as part of a family group, and 22 percent were expelled.