The public health authority, known as Title 42, was invoked at the onset of the coronavirus pandemic, despite suspicions among officials that it was politically motivated. It allows authorities to swiftly remove migrants encountered at the US southern border, effectively barring those seeking asylum from doing so and marking a departure from previous protocol.
The use of the authority has fielded fierce criticism by immigrant advocates, attorneys and health experts, who argue it has no health basis and puts migrants in harm’s way. The United Nations refugee agency has also pushed back on the authority.
But on Wednesday, Justice Department lawyers will argue before the US Circuit Court of Appeals in Washington, DC, that the public health order is needed.
Wednesday’s court proceedings stem from a lawsuit filed last January, when the American Civil Liberties Union and others challenged the Trump-era border policy on behalf of migrant families. The ACLU had also challenged subjecting unaccompanied children to the policy, though they are now exempt.
“We are back in court because the Biden administration has chosen to continue this brutal policy against families, despite the absence of any support from public health officials,” said the ACLU’s Lee Gelernt, lead attorney in the litigation.
Plaintiffs in the case had been in negotiations with the government for several months, and as part of the litigation, the ACLU referred some families to be admitted to the US.
Those negotiations fell apart, though, when the Biden administration decided to keep the public health order in place, angering immigrant advocates who argue it should be ditched.
At the time, a senior Homeland Security official, who’s since departed the administration, painted a dire picture in a court filing of what would occur if the public health order were lifted, citing a migrant surge at the US-Mexico border that had overwhelmed facilities.
“These encounter rates have strained DHS operations and caused border facilities to be filled beyond their normal operating capacity, impacting the ability to employ social distancing in these congregate settings. At the same time, DHS is also experiencing significantly increased rates of noncitizens testing positive for COVID19,” the August declaration read, arguing that the risk had increased because of the highly transmissible Delta variant of the coronavirus.
A month later, a federal judge blocked the Biden administration from expelling migrant families with children under the public health order, but an appeals court stayed the ruling.
The administration continues to rely on the authority. And when asked about it, the White House has referred to the US Centers for Disease Control and Prevention, which, according to a spokesperson, deems it necessary given the Delta and Omicron variants.
That’s done little to quell the concerns of immigration attorneys, advocates and public health experts.
“The Biden administration’s argument that it should be allowed to expel refugees because it wants that power cannot change the fact that Title 42 is an illegal and xenophobic policy that doctors and other public health experts have clearly and repeatedly stated does not stop the spread of COVID,” said Diana Kearney, senior legal adviser with Oxfam America, in a statement.
In a recently released report, Human Rights First found nearly 9,000 reports of kidnappings and other violent attacks against people who had been expelled to Mexico or blocked from seeking protection in the US.
