WASHINGTON. A public health rule that kept many undocumented migrants from entering the country during the pandemic was dealt a blow on Friday when a federal appeals court said it could no longer be used to remove families to countries where they would face persecution or torture.
The ruling, handed down by a bench of the U.S. Court of Appeals for the District of Columbia Circuit, partially upheld the earlier ruling on the ongoing lawsuit and only applies to migrant families traveling with underage children. While this allowed the Biden administration to keep the rule in place, the three-judge panel questioned whether it was still needed, noting that it “looks in some respects like a holdover from an era without vaccines, sparse testing, few therapeutics, and few drugs.” “. confidence”.
Immigration lawyers said the decision meant that migrant families would now need to be given an opportunity to express their fear of persecution or torture, which could be followed by an interview with an asylum officer or a trial by an immigration judge. which have been widely denied since the public health rule was introduced in March 2020.
The Biden administration may continue to use the rule, known as Section 42, for families who do not face persecution, as well as single adults, who make up the majority of migrants expelled under it. Critics say the rule, introduced by President Donald Trump, was his most successful attempt to limit the asylum.
However, many immigration groups, as well as some people in the Biden administration, see Friday’s decision as the beginning of the end of public health rules, as the court’s ruling could make it harder for the administration to exonerate those single adults who face persecution or torture should be excluded.
After the decision was made, some Department of Homeland Security officials were called to participate in a telephone conversation with department secretary Alejandro N. Majorcas to discuss “the end of Section 42,” according to a person familiar with the internal discussion. who spoke on condition of anonymity to discuss domestic affairs.
Lee Gelernt of the American Civil Liberties Union, one of the lead lawyers for the plaintiffs in the case, called Friday’s development “a huge win.”
Immigration and human rights advocates said President Biden followed Trump in using the rule to control illegal immigration, which is a political vulnerability for him, rather than to stop the spread of the coronavirus.
“It was put in place by the Trump administration and kept by the Biden administration so they didn’t have to check people for harassment,” Mr. Gelernt said, “and they could just immediately put families on planes to Haiti and other dangerous countries without determining what might happen. happen to them.”
One of the most notorious examples was last September, when thousands of Haitians were sent back to their country without being given a chance to explain why they feared returning to an impoverished country that has been hit by natural disasters and is run by a gang in some areas.
In recent weeks, lawmakers from the president’s own party have pressured the administration to repeal the rule.
The Biden administration did not respond to questions about the decision or the government’s next steps.
White House officials said the Centers for Disease Control and Prevention must decide when the public health rule can be lifted. The next policy review of the agency will be held in April. Brandon Judd, head of the border guards union, said agents had heard that the rule was being lifted on April 1.
The Biden administration has kept order for all migrants except children who arrive at the border without parents or guardians, though in practice the government has allowed many families to stay despite the rule. While over 181,000 migrant families were expelled under it, many more families were allowed to enter the country for deportation proceedings for a variety of reasons, including humanitarian exceptions.
Many Republicans praised the use of the rule and called it a successful policy. Last year Senator Ted Cruz, Republican of Texas, introduced legislation to make it law.
Critics of the rule, including a number of public health experts, have said that expelling migrants to prevent the spread of Covid-19 in the United States is of no public health benefit, especially now. The Court of Appeal appears to have agreed.
“Certainly, as with most things in life, no single approach to Covid-19 can eliminate all risks,” the commission wrote. “But from a public health standpoint, based on the limited records we have, it’s far from clear whether the CDC’s order serves any purpose.”
While the number of cases and hospitalizations from Covid-19 in the United States has been declining recently, the number of migrants trying to enter the country has not significantly decreased. Officials expect even more this year than last year.
And Section 42 expulsion proved to be an effective way to remove undocumented immigrants at a time when record numbers crossed the southwest border.
“While this decision can be seen as a win for both sides, it pales in comparison to the train on the rails,” said RJ Howman, head of government relations for the Federation of American Immigration Reform. conservative group. “Whatever the border crisis is now, it would be a lot worse without Section 42.”
Mr. Judd, head of the border guards union, said Friday’s decision would not have an immediate impact on operations at the border, as most migrant families have already been allowed into the country for expulsion procedures. But if power disappears completely, he said, “it won’t be good.”
Officials argue that border guards are overwhelmed and that the existing border stations are unable to detain all the migrants who need to be cleared into the country, a resource-intensive and labor-intensive process. Some border guards fear that without the introduction of the rule they will be completely overwhelmed and immersed in paperwork instead of patrolling the border.
Interviewing migrants about their fear of torture or persecution can take days or even a week, and requires a place where migrants can be humanely held until they are interrogated, said Aaron Reichlin-Melnick, political adviser American Immigration Council.
“Given these operational realities, actually conducting interviews with well-founded fear for families would be incredibly difficult,” Mr. Raikhlin-Melnick said, adding that “the most likely outcome would be to simply release families who express fear of persecution. ”
Most often, single adults are turned away, including many repeat offenders who have not yet been punished for being caught more than once. The government estimates that about 30 percent of people caught illegally crossing the southwestern border have been caught previously.
According to a person familiar with the internal discussions, one of the ideas the administration is considering is to start fining repeat transitions and delaying them.