DC Circuit Rejects Biden & Trump Administrations’ Claim That the U.S. Can Ignore its Humanitarian Protection Obligations During the Pandemic
Today the Court of Appeals for the D.C. Circuit issued an opinion
, a lawsuit on behalf of migrant families seeking humanitarian protection at our southern border. They challenge Title 42, an order issued in the name of public health, first by the Center for Disease Control (CDC) under President Trump but inexplicably continued and defended
under President Biden, that authorizes U.S. border officials to “expel” (summarily deport) asylum seekers without regard to the fact that doing so could subject them to persecution, torture, and violence (in violation of U.S. and international law). The trial court had preliminarily enjoined (blocked) that policy back in September 2021, but the Biden Administration immediately appealed, and the D.C. Circuit stayed (paused) that preliminary injunction while the appeal was fully briefed and argued (meaning that the so-called “Title 42 expulsions” continue for families).
In today’s opinion, the D.C. Circuit rejected the Biden Administration’s argument that the public health law authorizes the federal government to deport migrants without regard to its obligations, found in the immigration law, not to return them to persecution or torture. The Court held that, although the public health law generally authorizes both the Title 42 expulsion order and the expulsion of noncitizens who violate it (including, the panel held, without the procedural opportunity to apply for asylum), the immigration law nonetheless continues to limit where those noncitizens can be sent—and they cannot be sent anywhere they are likely to be persecuted or tortured. The panel thus affirmed the key part of the district court’s preliminary injunction, which prohibits the government from expelling migrants without regard to that legal obligation.
The panel did reject the argument that the Title 42 expulsion order was not generally authorized by law (handing the Biden Administration a nominal victory on that question), but the opinion—written by Judge Walker, a Trump appointee—noted the absence of evidence regarding its efficacy as a public health measure, calling it “in certain respects like a relic from an era with no vaccines, scarce testing, few therapeutics, and little certainty.” There and elsewhere, Judge Walker suggested that the expulsion order could in fact violate the prohibition on arbitrary and capricious government action (a claim that was not before the panel, but that remains in the case at the district court).
This opinion is worth celebrating, and here’s hoping that the Biden Administration takes it seriously and waives the white flag on what remains of this relic from the Trump Administration’s anti-immigrant agenda. Kudos to the entire legal and plaintiff team for their steadfast work on this case.
Texas District Judge Preliminarily Blocks Exception in Title 42 for Unaccompanied Children
Just hours after the D.C. Circuit issued its Huisha-Huisha
opinion, Judge Pittman granted a long-pending request of Texas to preliminarily enjoin (block) the narrow exception in the Biden Administration’s Title 42 expulsion orders for unaccompanied noncitizen children. The contrast between the two decisions could not be starker: whereas Huisha-Huisha
strongly suggested that the CDC’s Title 42 expulsion order is wholly irrational, particularly at this point in the pandemic, Judge Pittman opens his opinion
stating how “baffled” he is that there could be any
“disagreement that the current immigration policies should be focused on stopping the spread of COVID-19.” From there, Judge Pittman holds that since unaccompanied children can also spread COVID, the federal government acted arbitrarily and capriciously in carving out an exception from the Title 42 expulsion order for migrant children traveling alone. Judge Pittman stayed (paused) his preliminary injunction for 7 days to permit the federal government to seek a longer stay from the Fifth Circuit. We hope this opinion is another strong incentive for the Biden administration to do the only right thing: end the Title 42 policy once and for all for all migrants.
The Supreme Court’s Decision to Hear the Remain in Mexico Case Freezes Related Litigation
As we previously reported, two weeks ago the Supreme Court agreed to review lower court decisions holding that the Biden Administration did not have the legal authority to end the “Remain in Mexico” policy, whereby asylum seekers are forced to wait in dangerous conditions in Mexico for whatever length of time it takes the U.S. government to process their asylum application. Because the Supreme Court is expected to resolve in that case various legal questions that are also present in other cases brought by red states, those other cases are generally now getting stayed (paused) to await the Supreme Court’s decision, which is expected by early July.
As always, thanks for reading. You can find JAC’s statement on today’s two Title 42 rulings here
. Here’s to the day when the right to asylum is restored once and for all.