On September 16, U.S. District Judge Emmet G. Sullivan granted an injunction to asylum-seekers facing expulsion from the U.S. under Trump-era Covid-19 regulations. The Biden Administration had allowed these regulations to continue since taking office.

In the case Huisha-Huisha et al. v. Mayorkas et.al., plaintiffs successfully sought an injunction against the collection of CDC orders that Judge Sullivan referred to as “the Title 42 Process.”

Generally, the Title 42 Process allows the Department of Homeland Security, working through Customs and Border Patrol, to expel asylum-seeking immigrants as quickly as possible – without any statutorily-required hearings – because of the spread of the deadly COVID-19 virus.

Since March of 2020, the CDC issued several iterations of a Final Rule invoking the never-before-used Title 42 public health laws to justify returning families to their home countries without standard removal proceedings. In so doing, the CDC primarily cited to issues posed by keeping asylum-seekers in the U.S. while they awaited interviews with CBP and the spread of COVID-19. Specifically, a lack of space in DHS centers leads to higher infection rates among immigrants and CBP agents, and a lack of resources to address the climbing infection rate called for a fast-acting solution.

The problem, however, is that the CDC’s solution is “likely unlawful.” In his recent order, Judge Sullivan stated that the risk of sending immigrants back to their dangerous home countries far outweighs the risk of keeping them in the U.S. Overcrowding issues are not solely due to allowing asylum-seekers to stay in the U.S., as “86% of families arriving at the southwest border are already allowed into the United States and processed for regular removal proceedings.” Under the Title 42 Process, removal involves placing immigrants on “crowded planes and buses…without first testing the individuals and isolating those who test positive.” Importantly, Title 42 was originally passed in 1944 – since then, the U.S. has taken significant legislative action to protect those seeking refuge within U.S. borders, and it would not make sense to read Title 42 as if none of those efforts were successful.

Last month, the CDC under the Biden Administration announced that it intends to keep the Title 42 Process in place, largely because of the new dangers posed by the Delta variant of COVID-19. But in his recent order, Judge Sullivan pointed out that widespread availability of COVID-19 vaccines largely mitigates the problems previously relied on in the first passing of the new Title 42 rules. Additionally, Judge Sullivan noted that more statistics are available regarding the spread of the virus, and these statistics show that new infections are much more likely to be caused by other Americans, not by immigrants awaiting hearings in CBP facilities.

This is the second of Judge Sullivan’s rulings on the Title 42 process and its concerning effect. Earlier this year, Judge Sullivan issued a similar injunction against enforcing Title 42 to expel unaccompanied migrant children. However, the injunction was overturned on appeal in the last month of the Trump Administration.

The announcement that the Biden Administration would continue enforcing Title 42 in the immigration context shocked many lawyers and activists, who believed the new presidency would see a repeal of the expulsion rules. However, there have been some important changes in DHS’s Title 42 policy between 2020 and 2021. In May this year, DHS announced that it has been working to exempt “particularly vulnerable individuals” from border restrictions, using pre-entry COVID-19 testing to exempt 250 individuals from the Title 42 process every day. Additionally, as a result of prior negotiations with the ACLU, organizations like the Florence Project in Arizona have provided asylum-seekers with assistance in acquiring humanitarian exceptions, allowing those individuals to stay and get the relief they need.

If you have any questions about seeking asylum or refugee status in the U.S., contact us at ILBSG. We continue to stay on top of policy developments to keep our clients well-informed and, as always, to ensure our clients get the right advice.

 

Sources:

asylum Asylum Seekers Expulsion