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Migrants seeking asylum at the U.S.-Mexico border

Asylum-seekers prepare to be taken to a U.S. Border Patrol processing facility after crossing into the U.S. on June 16, 2021 in La Joya, Texas. (Photo: Brandon Bell/Getty Images)

Advocates Blast Biden for Embracing Trump's 'Racist' Policy as Court Upholds Title 42 Expulsions

"Title 42 must end, and every day the Biden administration fights to uphold it, they choose xenophobia and racism over protecting human rights."

Brett Wilkins

Migrant rights advocates on Friday accused President Joe Biden of embracing his predecessor's racist policies and endangering families following a court ruling that will allow the administration to continue expelling asylum-seekers under the pretext of protecting public health during the Covid-19 pandemic.

"The president has adopted Trump's racist policy as his own, without regard for the families and children harmed as a result."
—Neela Chakravartula, CGRS

On Thursday, the U.S. Court of Appeals for the District of Columbia Circuit ruled in Huisha-Huisha v. Mayorkas that the U.S. Department of Homeland Security (DHS) can continue removing asylum-seeking migrants under Title 42, a section of the Public Health Safety Act first invoked by the Trump administration as the coronavirus pandemic began in March 2020.

Title 42 was scheduled to be lifted Thursday in compliance with a lower court's order. However, the Biden administration—which has deported hundreds of thousands of migrants under the law—appealed the decision.

Human rights experts including United Nations officials have condemned Title 42 removals, which plaintiffs' attorneys in Huisha-Huisha called "a pretext" to deport migrants legally seeking asylum in the United States.

"Expert scientists at the Centers for Disease Control and Prevention rejected the use of public health powers to expel noncitizens as unnecessary," a court filing in the case asserts, "but the process was nevertheless imposed on the CDC by White House officials seeking to limit immigration, and not as a bona fide measure to protect public health."

ACLU attorney Lee Gelernt, the lead lawyer in the Title 42 challenge, said following the ruling that "if the Biden administration really wants to treat asylum seekers humanely, it should end this lawless policy now and withdraw its appeal."

"We will continue fighting to end this illegal policy," he vowed.

Tami Goodlette, director of litigation at Refugee and Immigrant Center for Education and Legal Services (RAICES) and co-counsel in Huisha-Huisha, said in a statement that "the Biden administration should never have appealed this case."

"The lower court concluded Title 42 was illegal and should not be applied to exclude families from seeking asylum in the U.S.," Goodlette continued. "But rather than allow families to seek refuge in our country—which is legal under U.S. law and international law—the administration chose to further promulgate the Trump administration's racist and xenophobic policies by appealing the case, and then [proceeded] to expel thousands of Haitians from Del Rio, Texas under Title 42."

"The Biden administration has lost its way and needs to remember its promises from the election," Goodlette added. "Migrants deserve better. Our country deserves better."

Neela Chakravartula, managing attorney at the Center for Gender & Refugee Studies (CGRS) and another co-counsel in the case, said that "the Biden administration's embrace of Title 42 has exposed people seeking safety to untold violence and suffering."

"The administration's decision to defend the policy in court is unconscionable, and a complete betrayal of the president's promise to restore access to asylum," asserted Chakravartula. "Recent events have laid bare the tragic consequences of Title 42. In less than two weeks, the administration has expelled over 5,000 Haitians to a country plagued with widespread violence and insecurity—a human rights travesty, and no small operational feat."

"They could have used those resources to safely welcome Haitians seeking refuge," she added. "Instead, the president has adopted Trump's racist policy as his own, without regard for the families and children harmed as a result."

Amy Fischer, Americas Advocacy Director at Amnesty International USA, said that "once again, the Biden administration has shown that it is more committed to defending Title 42 than upholding the human rights of asylum-seekers."

"The continued weaponization of the pandemic to expel people from our border will result in serious harm for the thousands who have been denied protection, including thousands of Haitians who have been brutalized and expelled under the policy in recent weeks," Fischer added. "There is simply no way around it—Title 42 must end, and every day the Biden administration fights to uphold it, they choose xenophobia and racism over protecting human rights."

Karla Marisol Vargas, senior attorney with the Texas Civil Rights Project and Huisha-Huisha co-counsel, said in a statement that "by fighting to keep Title 42 in place, this administration is doubling down on its commitment to continue the racist and violent policies of the Trump administration and to further entrench cruelty and racism into an immigration system in sore need of change—a system that continually violates the basic human rights of migrants, especially Black and brown migrants."

"The violence against Black migrants in Del Rio showed us not only this administration's utter lack of humanity, but it also showed us the absolute lack of will in upholding the promises it claimed when on the campaign trail," she added.

Thursday's ruling came hours after DHS issued new guidance for Immigration and Customs Enforcement (ICE) and other agencies prioritizing the expulsion of people in the country illegally "who are a threat to our national security, public safety, and border security."

While DHS says the guidance is meant to empower authorities to exercise greater discretion and weigh the "totality of the facts and circumstances" when considering deportations, Marielena Hincapié, executive director of the National Immigration Law Center, warned that "the memo places a dangerous amount of discretion in the hands of ICE agents."

"Given the agency's long history of operating—and even rewarding—a culture of cruelty and impunity, it is crucial for the agency to commit to ensuring that these priorities are implemented fairly and justly," said Hincapié, "and that DHS leadership ensures ICE agents are held accountable."


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