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The Biden Administration Is Fighting In Court To Keep A Trump-Era Immigration Policy

Sep 20, 2021
Originally published on September 20, 2021 10:20 pm

As the Biden administration moves quickly to expel migrants camped under a bridge in Del Rio, Texas, its plan depends on a controversial Trump-era policy put in place in the early days of the COVID-19 pandemic to speed up removals.

Thousands of migrants — many originally from Haiti — have been camped out in squalid conditions since last week. Homeland Security Secretary Alejandro Mayorkas visited the site Monday and pledged to ramp up removal and expulsion flights of arriving migrants.

"If you come to the U.S. illegally, you will be returned," Mayorkas said at a news conference. "Your journey will not succeed."

That expulsion plan rests on a rarely used public health law known as Title 42. Immigration authorities say a public health order from the Centers for Disease Control and Prevention allows them to expel migrants crossing the border quickly without giving them a chance to apply for asylum.

President Biden came into office promising a more humane immigration system. Yet his administration has continued to use the Title 42 policy — and defend it in court — despite mounting pressure from immigrant advocates.

How did the policy come about, and how is it being challenged in court?

The Trump administration had long argued that migrants coming across the southern border did not qualify as refugees fleeing persecution and therefore were not protected by U.S. asylum law. As early as 2019, during an outbreak of mumps, well before the coronavirus pandemic, White House adviser Stephen Miller reportedly pushed for using Title 42 to turn back would-be migrants, according to The New York Times.

By March 2020, with coronavirus spreading rapidly in the U.S., the administration decided to invoke Title 42 to clamp down on the border.

The government expelled some 9,000 unaccompanied children who crossed the border before a federal judge in November ordered a preliminary injunction aimed at halting the practice. Judge Emmet Sullivan said Title 42 allows officials to block the entry of noncitizens who carry diseases but does not allow expulsions. He ordered an injunction to stop the rapid expulsions, though the U.S. Court of Appeals for the District of Columbia Circuit later stayed his order.

The Biden administration did carve out exceptions for unaccompanied migrant children. It has allowed the majority of parents and children arriving together to ask for asylum. But it has continued to expel many others, including some families and tens of thousands of single adults crossing the border.

Last week, however, Sullivan ordered a similar halt in the use of Title 42 to turn away families with children, setting a two-week deadline for the administration to comply.

The administration is appealing that decision as well.

Why is the Biden administration trying to keep the Title 42 policy alive?

The Biden administration defends its use of Title 42 as a public safety measure to slow the spread of the coronavirus.

"Title 42 is not an immigration authority, but a public health authority," Mayorkas said. "To protect the American public. To protect the communities along the border. And to protect the migrants themselves."

But physicians and immigrant advocates said that position is merely a pretext to remove migrants from the country quickly — with the most recent example being those sheltered under the international bridge at the Del Rio port of entry.

"What people need to understand is that, yes, the Haiti situation in Del Rio is awful," said Lee Gelernt, an attorney with the American Civil Liberties Union who has fought Title 42 in court across two administrations. "But it's only the most recent dramatic illustration of what this Title 42 policy can do."

Although the Biden White House undid some of former President Donald Trump's harshest immigration policies, it is seeking a balance to deter more migrants from crossing the border.

Haitians cross the Rio Grande back into Mexico from Del Rio on Monday. As U.S. authorities began deporting migrants back to Haiti, thousands more waited in a camp in Del Rio and others crossed the river back into Mexico to avoid deportation.
John Moore / Getty Images

On Sunday, U.S. Border Patrol Chief Raul Ortiz said the government had moved 3,300 individuals from the bridge camp to migrant processing facilities in San Antonio, Laredo and Eagle Pass, Texas. Ortiz said the local school system had lent buses to the effort, which he said was being carried out in a "humane and timely manner."

Officials said just over 300 have been removed on flights to Haiti.

"We are working around-the-clock to expeditiously move migrants out of the heat, elements and from underneath this bridge to our processing facilities in order to quickly process and remove individuals from the United States consistent with our laws and our policies," Ortiz said.

Critics on both the left and right have lashed out at the administration's handling of the situation in Del Rio. Hard-liners and some Republicans said the Biden administration is letting in too many migrants, while some Democrats said the White House is abandoning migrants.

What comes next?

Immigrant advocates said they will keep fighting in court to end Title 42. They said it is particularly cruel to implement it in this case since Haiti is still recovering from a recent earthquake and major political turmoil.

The ACLU's Gelernt said that the rights organization is "extremely disappointed but not shocked" by the Biden administration's decision to appeal the latest Title 42 ruling to the D.C. Circuit.

"We would have thought that the Biden administration, given how much they're talking about wanting a humane asylum system, would have at least grappled with the decision," he said.

Instead, the Biden administration is fighting in court to preserve one of the Trump administration's most hated border policies.

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LEILA FADEL, HOST:

The Biden administration is removing thousands of migrants from a makeshift camp in Del Rio, Texas. Roughly 10,000 migrants, many from Haiti, have been camped out there in squalid conditions since last week. Homeland Security Secretary Alejandro Mayorkas visited the site today and pledged to ramp up removal and expulsion flights of arriving migrants.

(SOUNDBITE OF ARCHIVED RECORDING)

ALEJANDRO MAYORKAS: If you come to the United States illegally, you will be returned. Your journey will not succeed, and you will be endangering your life and your family's lives. This is not the way to do it.

FADEL: NPR's Joel Rose covers immigration and joins me now.

Hi, Joel.

JOEL ROSE, BYLINE: Hey, Leila.

FADEL: So, Joel, the plan to expel these migrants in Del Rio rests on a controversial public health order that was put in place by the Trump administration. Can you remind us what that policy is?

ROSE: Yeah. The policy is known as Title 42, named after a section of the U.S. Code that deals with public health. The Trump administration first invoked Title 42 back at the beginning of the pandemic. The Centers for Disease Control and Prevention said that immigration authorities could quickly expel any migrants they encountered at the U.S.-Mexico border in order to prevent the spread of coronavirus. Immigrant advocates say that's illegal and harmful to migrants. They argued the Trump administration was using the coronavirus pandemic as a pretext, basically an excuse to shut down the asylum system at the border, which the administration had been trying to do in various ways for years.

FADEL: And yet this policy has continued under the Biden administration, which promised a different approach.

ROSE: Yes, although in a slightly modified form. The Biden administration did undo some of former President Trump's harshest policies. But at the same time, it has tried to strike a balance to deter migrants from coming to the border. And Title 42 kind of exemplifies this balancing act. The administration carved out exceptions for vulnerable migrants. For example, unaccompanied migrant children are allowed in. And parents and children arriving together have mostly been getting in to seek protection. But tens of thousands of single adults are being quickly expelled.

FADEL: So bring us back to Del Rio. What does this mean here?

ROSE: Well, Del Rio became a flashpoint because DHS, the Department of Homeland Security, was unprepared for so many migrants arriving all at once. But in another sense, it is typical of what's been happening at the border all year, with border crossing numbers near a 20-year high. And Del Rio shows why the Biden administration possibly has been so reluctant to give up Title 42, because this is the tool it's using to quickly remove some of these migrants from the U.S. and also to send a message to other migrants that they are likely to be sent back, too.

FADEL: So what's the reaction been so far to the administration removing people and sending people back to Haiti, still reeling from a massive earthquake and the assassination of its president?

ROSE: Well, that's another thing that I would say is typical about Del Rio. The administration is getting blasted by critics on both the left and the right. Hard-liners and some Republicans say the Biden administration is letting in too many migrants, which will in turn lead to even more chaos at the border. Meanwhile, immigrant advocates and some Democrats say the administration is abandoning vulnerable people and sending them back to Haiti at a time when, as you say, the country is reeling. Here's Lee Gelernt from the ACLU, which has been fighting Title 42 in court across two administrations.

LEE GELERNT: What people need to understand is that, yes, the Haiti situation in Del Rio is awful, but it's only the most recent dramatic illustration of what this Title 42 policy can do.

FADEL: And there are ongoing legal challenges here, right?

ROSE: That's right. A federal judge in Washington, D.C., ruled against the Biden administration last week, saying that Title 42 does not give immigration authorities the power to quickly expel migrant families. But the Biden administration quickly said it would appeal that ruling. So we are seeing this administration fighting in federal court to preserve one of the Trump administration's most hated border policies.

FADEL: That's NPR's Joel Rose.

Thank you, Joel.

ROSE: You're welcome. Transcript provided by NPR, Copyright NPR.