Court challenge to ‘expulsion’ order looms over border policy

The Biden administration inherited a lawsuit brought by migrant families challenging ‘Title 42’

A Customs and Border Protection agent processes migrants who crossed the border in the Rio Grande Valley Sector of Texas in August 2019.   (Jinitzail Hernández/CQ Roll Call file photo)
A Customs and Border Protection agent processes migrants who crossed the border in the Rio Grande Valley Sector of Texas in August 2019. (Jinitzail Hernández/CQ Roll Call file photo)
Posted April 1, 2021 at 12:21pm

The Biden administration has relied on a Trump-era public health directive to continue turning away most people who try to cross the southwest border.

A lawsuit the administration also has inherited, however, threatens to bar the government from applying that directive, known as Title 42, to migrant families — which could undermine the administration’s border strategy and spur a new detention challenge. 

Currently, the Biden administration has formally exempted unaccompanied minors from the directive, or migrants under 18 who arrive without their parents. Rising numbers of minors coming to the U.S. alone have strained federal agencies struggling to increase capacity to house those children. 

On March 30, the most recent government data available, more than 12,900 kids were in the custody of the Department of Health and Human Services, which oversees unaccompanied migrant children after they are picked up by border officials. More than 5,200 additional minors awaited transfer to HHS in overcrowded border facilities. 

“If Title 42 were to be ruled — in the way it’s being used — illegal and taken down immediately, the Biden administration would have an immediate, major operational problem at the border,” said Theresa Cardinal Brown, managing director of immigration and cross-border policy at the Bipartisan Policy Center and a former official at the Department of Homeland Security.

President Joe Biden has promised to revamp the U.S. asylum system. He wants to set up more refugee processing centers abroad and move away from immigration detention in favor of case management programs. 

The Biden administration has reversed some of President Donald Trump’s signature asylum policies, such as the program requiring asylum-seekers to “remain in Mexico” as they wait out their U.S. immigration cases. But it has left Title 42 in place for families and single adults — and even continued to defend the directive in D.C. federal court. 

This tactic has allowed the administration to buy itself some “breathing room” to build up those processes before it fully resumes asylum at the border, Brown said.

Family detention 

The American Civil Liberties Union filed a legal challenge to the expulsion policy on behalf of migrant families during the final days of the Trump administration

The suit claims that the Title 42 directive, whose authority predates much of the federal immigration statute, conflicts with provisions barring the U.S. from sending individuals back to countries where they would be persecuted.

“Indeed, the entire Title 42 Process was established as a pretext,” the ACLU said in its lawsuit, citing news reports that the Trump administration had implemented the directive after ignoring the advice of experts from the Centers for Disease Control and Prevention who said it was unnecessary in protecting public health. 

If U.S. District Judge Emmet G. Sullivan, the Clinton appointee overseeing the case, were to rule against the policy, administration officials may find themselves scrambling to accommodate those families, on top of the unaccompanied children already straining the system.

A U.S. Border Patrol official told reporters in late March that the agency has encountered an average of 2,300 migrant families each day over the past 30 days. 

“I don't think that the Biden administration wants to detain families, but they may have no choice but to put them in detention centers if those are the places they have for them in the short-term,” Brown said. 

Family detention presents its own challenges. Under a California federal court settlement, children cannot be held in immigration detention facilities, even with their parents, longer than 20 days. Both the Obama and Trump administrations tried to detain families together for longer, but were thwarted in court. 

As a result, the Biden administration may be more likely to release them into the U.S. pending their court hearings. 

Word that the U.S. would accept and release families into the U.S. could lead to a “modest increase” in family arrivals, according to Adam Isacson, director for defense oversight at the Washington Office on Latin America.

The administration has already increasingly taken in migrant families because Mexico sometimes refuses to take them back, which could blunt the impact of such a ruling, Isacson said. In February, around 40 percent of families encountered at the border were expelled under Title 42, according to CBP data.

Yael Schacher, senior U.S. advocate at Refugees International, said restarting the practice of processing asylum-seeking families would be “tricky, but I think probably doable.”

“It’s going to be kind of messy at first, just like it was for the kids,” she said. “I think it is going to be hard, but I think it's the right thing to do.”

‘Touch-and-go’ in court

A ruling dismantling Title 42, at least as it relates to families, may not be far off. 

The ACLU case was put on hold in February so lawyers for the ACLU and the federal government could “explore whether it may be possible to resolve or narrow the dispute at issue in this case,” according to a joint court filing. 

Biden may have sparked a riff in those discussions last month during his first formal press conference as president. He doubled down on the policy to expel migrant families and said the U.S. was “in negotiations” with Mexico to increase the country’s capacity to accept more families. 

“We’re trying to work out now, with Mexico, their willingness to take more of those families back,” Biden said. 

That prompted quick backlash from Lee Gelernt, deputy director for the ACLU’s immigrants’ rights project. On Twitter, Gelernt wrote that the organization had agreed to pause its case in exchange for a “good faith promise to negotiate.” If Biden wants to expel all families, “then litigation may be [the] only choice,” he said. 

The hold on the case expired Friday, and the ACLU and the federal government agreed to continue the delay in the case for another 10 days, according to a court filing the night before. 

In an interview Wednesday, Gelernt had said it was “still touch-and-go” as to whether the parties will agree to pause the case longer to continue discussions or whether the ACLU will move forward with its request to block Title 42 for all migrant families.

He said he needs to see the Biden administration take steps to accept more families to justify continuing to delay litigation. 

“It’s not likely the government in the next two days will end Title 42 completely, but we need to see some progress,” Gelernt said. “There’s no sort of formula we’re looking for, but we are looking for progress.”

The Title 42 order has already shown itself to be legally vulnerable. Sullivan, the judge in the ACLU case on behalf of migrant families, has already ruled against the directive for unaccompanied children. His legal reasoning could be applied to the families covered by the case — or even to put a full end to the policy for single adults, too.

In his November ruling, issued as part of separate ACLU litigation, Sullivan concluded that the directive’s underlying statute bars the “introduction” of foreigners in the U.S. who could spread disease, but does not permit the U.S. to expel foreign citizens who have already crossed the nation’s borders. 

But Title 42 ultimately rises and falls with Mexico’s cooperation. And some policy experts say the fate of the controversial expulsion policy may lie with the Mexican government more so than in court. 

“At the end of the day, Title 42 is part and parcel of the system that is designed to basically make other countries be our enforcement apparatus,” said BPC's Brown. 

“Regardless of what a judge might say, Title 42 might come down if Mexico says, ‛You know what? Nope.’”