Court orders might force administration’s hand on Title 42—03-11-22
Immigration news, in context
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This week’s edition:
In The Big Picture, we delve into two recent judicial decisions on Title 42.
In Under the Radar, we discuss the increase in Ukrainian asylum seekers at the U.S.-Mexico border.
The Big Picture
The news: Last Friday, federal judges in Texas and D.C. issued Title 42-related orders that, while not directly in conflict with each other, assert competing legal positions about the policy. An injunction by a Texas federal judge in particular could force the administration to reexamine its application of the policy or start expelling unaccompanied children again, a position that could refocus public outrage on it in a way that the order has so far largely managed to avoid.
What’s happening?
On the morning of March 4, last Friday, a panel of the D.C. Circuit Court of Appeals issued an order upholding a prior District Court injunction that prevented the administration from expelling migrant families with children under Title 42, an injunction that the panel had previously stayed at the administration’s request. It’s an order in the long-running case of Huisha-Huisha v. Mayorkas, the ACLU’s overarching attempt to have the whole of the Title 42 order declared unlawful. The panel, composed of Chief Judge Sri Srinivasan and Circuit Judges Justin R. Walker and Robert L. Wilkins, ultimately narrowed the scope of the original injunction.
While advocates held up the order as a victory for the effort to unwind Title 42, it is a rather pyrrhic one, as the panel is still signaling that it believes expulsions are legal and that the plaintiffs are unlikely to succeed on the merits in their broader argument against the policy. In the order, the judges point to language similar to that found in 42 U.S.C. § 265, the specific statute under which Title 42 was issued. Versions of it date back to the late 18th century and had allowed the government to remove people it thought could introduce disease into the country.
Though the ACLU’s lawyers point out that the current statute does not mention expulsions or removals, the panel sided with the government on the question of a general right to expel migrants under Title 42. Writing for the panel, Judge Walker stated that Congress could have been clearer in its language, it comes down to the government’s power to remove people “in violation of law,” and given that Title 42 is indeed a law under which the administration can issue orders, migrants are removable under it. This is despite the fact that the judges acknowledge there’s a dearth of evidence that Title 42 meaningfully impacts COVID transmission, writing that “ we would be sensitive to declarations in the record by CDC officials testifying to the efficacy of the § 265 Order. But there are none.”
As far as migrants’ right to seek asylum, Walker writes that it is essentially the government’s right to discretionarily preclude them from access: “the Executive ‘may grant asylum’... Or it may not. It is a matter of executive ‘discretion’... and here, for public-health reasons, the Executive has shown an intent to exercise that ‘discretion’ by foreclosing asylum for the specific subset of border crossers covered by its § 265 Order… if the asylum decision has already been made — by the § 265 Order— then those procedures would be futile.” This is a rather broad and very dangerous argument to make, essentially that the government can take a wholly separate provision of law and use it to kill access to asylum altogether. This isn’t a final order, only an interim order allowing a prior injunction to go into effect in a modified form, but it’s still very notable that this is the panel’s thinking so far.
The one point where the judges disagreed with the administration’s approach was on the question of where people can be expelled. Here, the judges cited 8 U.S.C. § 1231(b)(3)(A), which states that the government categorically may not “remove an alien to a country if [Homeland Security] decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” Separately, the Convention Against Torture, to which the U.S. is a signatory, prohibits removal to countries where migrants would be at risk of torture. As Walker summarizes, “the Executive can expel the Plaintiffs from the country. But it cannot expel them to places where they will be persecuted or tortured.”
Later on Friday, U.S. District Judge Mark Pittman of the Northern District of Texas issued an order in a separate case, Texas v. Biden, which would compel the administration to again begin expelling unaccompanied minors under Title 42. As detailed below, a Trump-era injunction in the case of PJES v. Wolf had stopped the government from applying the expulsion order to minors arriving alone. That order was eventually overturned, but the Biden administration decided to voluntarily continue not expelling minors. Texas sued the administration, contending essentially that the government had violated the Administrative Procedure Act (the same law that had felled many restrictive Trump-era policies) as well as the Immigration and Nationality Act’s supposed requirement to detain migrants.
At base, Texas’ argument is that the government did not consider the harms that would be dealt to the state by not expelling children, chiefly by straining resources such as healthcare provision and educating the children. Somewhat bizarrely, one of the state’s claims is that the policy places additional burdens on its criminal justice system, seeming to insinuate that a substantial number of asylum-seeking minors will have criminal contact. The Trump-appointed Pittman fundamentally agrees, writing that “Texas is a border state facing a healthcare crisis that is compounded by an immigration crisis,” skirting very close to what are essentially right-wing talking points. He doesn’t explicitly say that unaccompanied minors are spreading COVID, but does argue that the government hasn’t disproved that that’s the case.
The judge also sided with Texas in its claim that the government was likely violating 8 U.S.C. §§ 1222 and 1225, which deal with inspection and detention of people attempting to enter the United States, and which the state claims force the administration to detain people pending health examinations and pending removal if they do not qualify for an asylum proceeding.
He ends up decrying what he views as administrative state overreach in sum, complaining that “decisions are now decided by individuals within the administrative state with no political accountability. And because these administrative decisions are housed in the Executive Branch, all roads—for better or worse—lead back to the President of the United States. Here, the President has (arbitrarily) excepted COVID-19 positive unaccompanied alien children from Title 42.” Pittman then enjoins the federal government from applying its order exempting minors, though stays the order for seven days (i.e., until today, Friday, March 11) to allow it to seek emergency relief at an appellate level.
How we got here
The Trump administration implemented Title 42 in the early days of the pandemic, using COVID-19 as a pretext for turning asylum seekers away en masse at the border. Under the policy, migrants are quickly turned back to Mexico without a formal deportation process.
An earlier Title 42 lawsuit focused exclusively on unaccompanied children. In the fall of 2020, a federal district court ruled that the Trump administration could not expel unaccompanied children, but that order was later overturned. The Biden administration chose not to expel unaccompanied minors despite being allowed to do so, but continued expelling migrant families and single adults.
The Huisha-Huisha lawsuit was filed in January 2021, shortly before Biden took office, on behalf of migrant families who had been expelled or faced expulsion into Mexico. Although Biden promised to reverse many of Trump’s immigration policies—including Remain in Mexico and the ban on issuing visas to nationals of certain Muslim-majority countries—his administration continued renewing Title 42.
But unlike the Trump administration, the Biden administration did not categorically expel migrants under the policy. While most expulsions continued, there were some exceptions: Mexico was less willing to accept expelled migrants from certain countries, including Brazil and Venezuela, so many were granted entry and allowed to file asylum claims. The ACLU and the administration also agreed to put the lawsuit on hold, largely because advocates thought the administration would eventually introduce an off-ramp for Title 42 with the goal of ending the policy altogether.
While the lawsuit was paused, the ACLU and administration worked out an agreement in which certain migrants deemed to be particularly vulnerable in Mexico would be allowed into the U.S. Under this exemption process, a consortium of advocacy groups and service providers would travel to Mexican border cities, including Tijuana and Ciudad Juarez, to identify which migrants faced the most acute danger there. Typically that meant women with children, LGBTQ people, and people with certain medical conditions or disabilities. Those migrants would then be granted entry into the U.S. while the majority continued to be expelled into Mexico.
In the summer of 2021, Axios reported that the administration was considering rolling back Title 42. The administration was planning on ending Title 42 in phases, starting with family groups; it reportedly planned on stopping family expulsions by July 31. But as the date approached, the administration made no public announcements about ending expulsions—and by the end of July, some of the advocacy groups involved in the exemption process began to pull out. Instead of ending Title 42, the administration extended it, prompting the ACLU to resume the lawsuit.
We’ve discussed the harms migrants expelled to Mexico face numerous times, but it bears repeating. The number of migrants forced to wait indefinitely in Mexican border cities is unprecedented. Until the Trump administration began its practice of “metering” migrants at the border in 2018, it was practically unheard of for migrants to wait for weeks or even years in Mexico before being allowed to enter the U.S. to file an asylum claim. Their ranks increased further when the Trump administration introduced the Migrant Protection Protocols (more commonly referred to as the Remain in Mexico program), which forced migrants to wait in Mexico while their asylum cases played out in the U.S. immigration courts.
For the first time, tens of thousands of migrants were stuck at the border indefinitely, either waiting to be let into the country or waiting for a decision on their asylum claim. The massive number of migrants at the border provided an opportunity for gangs and cartels in cities across the Mexican border, which saw the migrants as an easily exploitable underclass with no one to advocate for or protect them. Even before the implementation of Title 42, migrants waiting at the border due to metering or MPP faced kidnapping, extortion, harassment, rape, and in some instances, were even killed.
Even after Biden ended MPP (though the policy has now resumed as a result of yet another lawsuit), Title 42 kept tens of thousands of migrants stranded in virtually every city along the U.S.-Mexico border. An October report from Human Rights First documented more than 7,000 kidnappings and other violent attacks migrants faced in Mexico since the Biden administration took office, and there are likely countless others that have not been reported.
What’s next?
In the D.C. Circuit order, the plaintiffs are specifically families, and the lawsuit was brought on behalf of a class of all migrant families with minor children who might be subject to Title 42. It’s not going into effect immediately, but will essentially prevent the administration from immediately expelling a large number of the families who would otherwise be removed within days. It’s important to note that the prohibition on return to a place where they might be persecuted or tortured doesn’t just apply to their country of origin, that they’re seeking asylum from, but could also apply to Mexico (for non-Mexican families), where many have been expelled.
As we go through above, there are plenty of specific harms that migrants can and have gone through upon expulsion just across the border, and if the government is forced to evaluate each individual family for the potential that they might face such persecution or torture, it will likely enormously cut down on (though certainly not eliminate, particularly given the lack of rigor with which CBP often administers these assessments) the number of families who are being expelled. Though this particular injunction only covers the plaintiff class, the judges’ legal reasoning could just as well be applied to anyone, including single adults.
The Texas order doesn’t directly conflict with the D.C. one in the sense that the populations at issue are different (unaccompanied minors versus families with children). The orders don’t even particularly conflict in spirit, given the D.C. panel’s acceptance that the government has the full legal ability to expel migrants, but they do present slightly different approaches to the government’s spectrum of responsibilities. If the administration sees itself forced to begin expelling unaccompanied minors, as it in theory may have to as early as today under the Texas order, that might fundamentally shift its continuing steadfast support for Title 42. While the U.S. public is often able to tune out the suffering of asylum seekers in general, harming unaccompanied children is a pretty straightforward way to kick up a furor.
Reuters’ Ted Hesson reported this week that some administration officials are privately saying that the administration is leaning towards terminating the order. This was followed by a report from BuzzFeed News’ Hamed Aleaziz that Homeland Security was preparing to alert Mexican authorities about the impending end of Title 42, as soon as in April, warning of a potential accompanying surge of asylum seekers to the border.
Taken in tandem, this is all pretty good evidence that the policy, at long last, is coming to an end, though that doesn’t mean that Title 42 as a concept is going away forever. It is much too powerful of a restrictionist policy to simply fade into the ether without judicial intervention. There are plenty other pathogens out there that this or subsequent administrations can always use as a convenient excuse to shut down asylum.
Under the Radar
Ukrainian families being turned away at the border under Title 42
A Ukrainian family of four was allowed into the U.S. after being initially turned away under Title 42, CNN reports. The mother, who identified herself as Sofia to the San Diego Union-Tribune, tried asking for asylum at the San Ysidro port of entry in San Antonio and was turned back twice. She was granted entry into the country after several publications reported on her situation.
They aren’t the only Ukrainian family who have attempted to seek asylum in the U.S. via Mexico. A family of 3 was reportedly separated by Customs and Border Protection after asking for asylum at San Ysidro. The father, a U.S. citizen, was allowed to enter the country while his wife and infant son were detained by the agency. Advocates have reported an increase in Ukrainian families asking for asylum at the Tijuana-San Diego border.
As CNN notes, Ukrainians have an easier time getting visas to Mexico than they do to the U.S., which is why families attempt to enter the country via the Mexican border.