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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)

Court Limits Biden's Use of Covid Policy to Expel 'Families Fleeing Danger'

"The decision is one small step towards unraveling this racist, harmful policy, and we will continue our fight for justice until individuals seeking safety are welcomed with dignity."

Jessica Corbett

Human rights advocates on Friday celebrated a key victory in federal court while also pressuring U.S. President Joe Biden to fully end what one critic called a "sham public health order" to expel immigrants seeking safety.

"Thousands of families at the border can breathe a momentary sigh of relief."

Biden and Homeland Security Secretary Alejandro Mayorkas have faced intense criticism for continuing the Trump administration's policy of using Title 42 authority to expel immigrants on public health grounds during the Covid-19 pandemic.

Karla Marisol Vargas, senior attorney at the Texas Civil Rights Project, was among those who welcomed the new ruling in Huisha-Huisha v. Mayorkas from a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit.

"Today's unanimous decision by the D.C. Court of Appeals orders the Biden administration to stop using Title 42 against families fleeing danger," said Vargas, whose group was part of a coalition that sued the Trump administration over the policy back in 2020.

"It orders the Biden administration to stop making these individuals 'walk the plank' by sending them to countries where they will be persecuted or tortured," she continued. "The decision is one small step towards unraveling this racist, harmful policy, and we will continue our fight for justice until individuals seeking safety are welcomed with dignity."

The judges found that the U.S. government cannot expel immigrants "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."

Some immigrants "have already been forced to walk the plank into those places," the ruling states, noting that "the record is replete with stomach-churning evidence of death, torture, and rape."

Though the court concluded the government cannot return immigrants to their home countries under certain circumstances, the ruling adds: "That does not make their presence here legal. Nor does it give them a path to asylum. Nor does it stop the executive from detaining them. Nor does it curb the executive's power to expel them to a country where they will not be persecuted or tortured."

In other words, "today's decision did not strike down Title 42, but it creates legal and procedural safeguards to protect immigrants," said Lawyers for Civil Rights (LCR) executive director Ivan Espinoza-Madrigal.

"Moving forward, immigrants cannot be deported without an assessment of whether they will be safe," he explained. "It's shameful that it took a court ruling against the Biden administration to enforce this basic right."

Diana Kearney, senior legal adviser at Oxfam America, said that "thousands of families at the border can breathe a momentary sigh of relief today" and described the decision as "a crucial step toward finally ending a shameful, baseless policy that inflicts undue harm to people seeking protection."

Calling the development "an enormous victory," Lee Gelernt, deputy director of the ACLU's Immigrants' Rights Project, pointed out that "we have argued from the beginning that the Title 42 policy is illegal and inhumane, and every court to address the issue has agreed."

"The court's ruling leaves no doubt that this brutal policy has resulted in serious harm to families seeking asylum and must be terminated," asserted Gelernt, who argued the appeal.

The ACLU attorney was far from alone in demanding a complete end to the policy. As Neela Chakravartula, managing attorney at the Center for Gender & Refugee Studies, said: "It is shameful that the Biden administration has fought so hard to defend the Title 42 policy, and they should reverse course immediately."

"It's time to end Title 42 and finally restart asylum processing at the southern border."

"Although today's ruling is technically limited to families, the court's reasoning makes clear that the government cannot return anyone to a country where they will face persecution or torture," Chakravartula added. "It's time to end Title 42 and finally restart asylum processing at the southern border."

Tami Goodlette, director of litigation at RAICES, declared that the decision "is a win for immigrants and confirms what we have been fighting for: that the expulsion of immigrants under Title 42 is inhumane, immoral, and illegal and it must end."

Some advocates didn't just call for a swift end to the administration's expulsion policy—they also urged other improvements.

Silvana Gómez—a paralegal at LCR who coordinated a delegation that went on a fact-finding mission to investigate conditions at the U.S.-Mexico border last October—noted Friday that "Huisha-Huisha did not meaningfully address confinement conditions, which remain highly concerning at the border."

"Contrary to public assumption, immigrants do not have consistent access to masks, hygiene products, disinfectants, sanitizers, social distancing, Covid-19 testing or vaccine," she said. "Health and safety in immigration detention facilities are being overlooked during a public health crisis."


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