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Biden Administration Defends Migrant Expulsion Policy in Court

January 21, 2022 by Reece Nations
Biden Administration Defends Migrant Expulsion Policy in Court
Children play in the main courtyard at Cobina Posada del Migrante, a migrant shelter, on April 3, 2019, in Mexicali, Mexico. Many of the migrants who stay at the shelter seek asylum and will be affected by the Migrant Protection Protocols, a policy requiring Central American asylum seekers to wait outside the U.S. territory while their claims are processed. (Dania Maxwell/Los Angeles Times/TNS)

WASHINGTON — The Biden administration defended its use of a controversial migrant expulsion policy in court on Wednesday despite criticism from immigrant advocates and attorneys.

Public health authority Title 42 was invoked by the Trump administration at the onset of the pandemic and allows immigration officials to rapidly expel migrants encountered at the southern border. The policy effectively bars individuals from seeking asylum without any legal process, signaling a departure from previous protocol.

The lawsuit was brought by the American Civil Liberties Union and other immigrant rights organizations. After hitting an impasse in negotiations with the Biden administration to end the policy, the immigration rights attorneys returned to court to seek its immediate halt after its reinstatement last September.

Although Title 42 is a public health directive, not an immigration measure, the Biden administration has carried out over one million expulsions citing the authority and moved to extend the policy indefinitely last summer. Justice Department attorney Sharon Swingle contended the policy was necessary for containing the virus’s spread and preventing outbreaks in overwhelmed border facilities.


“Obviously, the government’s goal is to get back to a state of orderly immigration processing for everyone, but currently, in CDC’s view, the public health realities don’t permit that,” Swingle said during oral arguments before the D.C. Circuit Court of Appeals.

Swingle maintained emerging variants of COVID-19 heighten the risk of breakthrough infections in vaccinated individuals and amount to a “change in the calculus of risk.” These risks highlight the reason the CDC is making these public health determinations in the first place, she said.

During the hearing, Swingle was met at times with some skepticism from the judges regarding the policy’s underlying scientific justification. For instance, Judge Sri Srinivasan pointed out that unaccompanied minors exempt from Title 42 are allowed to be held and processed in the facilities.

Although vaccines are made available to individuals who are processed at detention facilities prior to appearing before an immigration court, Swingle said vaccination does nothing to lessen the risk of spreading the disease in congregate settings in the days when the vaccine has not yet become effective.

ACLU attorney Lee Gelernt contended during the hearing the CDC has not applied the same judgment to other individuals taken in for processing — particularly unaccompanied minors. Consequently, the government’s order is essentially applying a different standard of acceptable risk to asylum seekers.


Gelernt also expanded upon a point made by Judge Justin Walker by asserting that enough precautionary measures exist at this point in the pandemic to mitigate the risk of contagion. A host of options ranging from frequent testing to the creation of outdoor facilities are present to lessen the possibility of spreading the virus, but he said the government hadn’t taken steps to properly equip border facilities before moving to expel the migrants.

“Title 42 is antithetical to asylum and is, for that reason, illegal,” Kate Huddleston, staff attorney for the American Civil Liberties Union of Texas, told The Well News. “It prevents people from seeking asylum as they typically would.”

Under normal circumstances, when individuals arrive at or cross the border and encounter Border Patrol agents, they are asked if they have a fear of returning to their country of origin. If they do have a fear, they’re then subject to a “credible fear interview,” Huddleston said. 

However, this initial asylum screening interview is not provided for under Title 42, and the number of people apprehended under the program and permitted to stay in the country is “vanishingly low” she said. This approach is contrary to basic commitments that have been enshrined in U.S. law since the 1980s.

Individuals placed in migrant protection protocols have the opportunity to be placed in immigration proceedings. Title 42 prevents migrants from accessing the proceedings at all prior to their expulsion from the country. The aggressive application of Title 42 has led to a decrease in migrants arriving from the so-called Northern Triangle of El Salvador, Honduras and Guatemala, said Adam Isacson director of defense oversight for the Washington Office on Latin America. 

“I should just point out that deterring an asylum seeker is illegal,” Isacson told The Well News. “Our law says that if somebody makes a credible claim that they fear for their lives you’re not supposed to deter them, you’re supposed to take them in because they might die.”

Despite the restart of the remain in Mexico policy due to a lawsuit brought by the attorneys general of Missouri and Texas, thousands of migrants proved willing to wait for their claims to be heard between the latter part of the Trump administration and now — although the amount is still far less than the tens of thousands of migrants who sought asylum during previous administrations.

In 2018, the United States fell behind Canada as the top resettlement country globally, according to the Migration Policy Institute. Despite this, Isacson said the opportunity for prosperity under the world’s largest economy will continue to encourage asylum seekers to come to the country.


“It’s literally like the families are walking a plank and the U.S. government knows it,” Gelernt said during the court proceeding. “The U.S. government is pushing them over the bridge while the cartels are sitting there waiting for them. Mothers and fathers are holding their little kids’ hands knowing that the cartels are at the other end … and so, for the government to say the transmission risk for this one group outweighs all those harms I don’t think is plausible.” 

Reece can be reached at [email protected]

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