SAN DIEGO (AP) — 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.
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 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.
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, when the Trump administration introduced the COVID-19 restrictions. The Biden administration has extended use of Title 42 authority, named for a 1944 public health law.
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.
“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.
Immigration advocates claimed at least partial victory.
“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 case on behalf of asylum-seeking families, called the ruling “an enormous victory.”
“The court’s ruling leaves no doubt that this brutal policy has resulted in serious harm to families seeking asylum and must be terminated,” he said.
The Justice Department declined to comment.
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.
President Joe Biden, in a break from his predecessor, has exempted unaccompanied children from Title 42.
