SAN DIEGO – A federal appeals court on Friday upheld sweeping asylum restrictions to prevent spread of COVID-19 but restored protections to keep migrant families from being expelled to their home countries without a chance to plead their cases.
Almost simultaneously, a federal judge in another case ruled that the Biden administration wrongly exempted unaccompanied children from the restrictions and ordered that they be subject to them in a week, allowing time for an emergency appeal.
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The conflicting decisions injected legal uncertainty into the future of rules that deny migrants a chance to seek asylum on grounds that it risks spreading COVID-19.
U.S. authorities have expelled migrants more than 1.6 million times at the Mexican border without a chance to seek humanitarian protections since March 2020. The Biden administration has extended use of Title 42 authority, named for a 1944 public health law.
The U.S. Court of Appeals for the District of Columbia said COVID-19 concerns could stop migrant families from getting asylum to remain in the United States.
But, the judges said, migrants can seek other forms of humanitarian protection that would spare them being sent home if they are likely to be tortured or persecuted. Under a benefit called “withholding of removal” and the United Nations Convention Against Torture, migrants may be sent to third countries deemed safe alternatives if their homelands are too dangerous.
A panel of three judges — two appointed by President Barack Obama and one by President Donald Trump — sharply questioned the Biden administration's use of Title 42.
Judge Justin Walker, a Trump appointee who wrote the unanimous ruling, noted that health concerns have changed dramatically since the U.S. Centers for Disease Control and Prevention announced the asylum restrictions two years ago. He wrote that it was “far from clear that the CDC order serves any purpose” for protecting public health.
"The CDC’s order looks in certain respects like a relic from an era with no vaccines, scarce testing, few therapeutics, and little certainty,” he wrote.
Walker noted that the Biden administration hasn't provided detailed evidence to support the restrictions.
“We are not cavalier about the risks of COVID-19. And we would be sensitive to declarations in the record by CDC officials testifying to the efficacy of the Order. But there are none,” he wrote.
In the other ruling, U.S. District Judge Mark Pittman, a Trump appointee, sided with the state of Texas, which argued that President Joe Biden wrongly broke with Trump by exempting children traveling alone for humanitarian reasons. He noted the increase in unaccompanied children at the border after the change.
Pittman, who is based in Fort Worth, Texas, said it was “beyond comprehension” that the case was even being argued. He said “there should be no disagreement that the current immigration policies should be focused on stopping the spread of COVID-19.”
The Justice Department declined to comment on either ruling.
Immigration advocates claimed at least partial victory for the Washington, D.C., appeals court ruling.
“Today’s decision did not strike down Title 42, but it creates legal and procedural safeguards to protect immigrants. Moving forward, immigrants cannot be deported without an assessment of whether they will be safe," said Ivan Espinoza-Madrigal, executive director of Lawyers for Civil Rights.
Lee Gelernt of the American Civil Liberties Union, who argued the appeals court case on behalf of asylum-seeking families, called the decision “an enormous victory.” He said the Texas ruling “is wrong and puts children in grave danger.”
Advocates of immigration restrictions took comfort in the Texas ruling.
"This is a truly historic victory, but we have a long, long, long way to go to end the administration’s crusade to eradicate our sovereignty,” said Stephen Miller, an architect of Trump's immigration policies who is now president of American First Legal, a legal advocacy group.
Mexico accepts migrants expelled under Title 42 who are from Mexico, Guatemala, El Salvador and Honduras. The U.S. can expel migrants from other countries but it is more difficult due to costs, logistical issues and diplomatic relations. The number of asylum-seekers has grown from Cuba, Nicaragua and Venezuela — all countries with frosty relations with the United States.