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Washington – US Government may continue to deport migrant families on the southern border under a public health policy known as Section 42, which does not allow them to seek asylum but cannot send them back to countries where their lives or freedom will be in danger, a federal appeals court ruled on Friday.

The decision made in U.S. Court of Appeals for the District of Columbia, while allowing the Biden administration to continue to pursue health policies, a key tool used by both the Biden and Trump administrations over the past two years to combat illegal border crossing.

However, the decision is likely to require the Biden administration to begin screening migrant families before they are deported to ensure that any deportation does not lead to the persecution or torture of migrants.


“It is likely that [Title 42] empowers the executive to ban foreigners from entering the United States during a health emergency; that the executive can expel foreigners who violate such a ban; and that in accordance with … the Convention against Torture, the executive cannot send foreigners to countries where their “life or liberty will be endangered,” the panel of three judges wrote in unanimity.

In March 2020, the Center for Disease Control and Prevention under the Trump administration issued an order called 42, using the obscure health authority from 1944, which allows the government to prevent the entry of foreigners to prevent the spread of infectious disease.

ACLU lawsuit

Last year, the American Civil Liberties Union sued the Biden administration for using title 42 to deport migrant families, preventing them from applying for asylum, a policy he said illegally circumvented existing legal protections built into in immigration law.

U.S. District Court in Washington however issued a preliminary opinion supporting this view the decision of the district court judge to terminate the exclusion families were suspended.

The Court of Appeal narrowed the view, saying only that the government has no general right to deport migrants regardless of security concerns.

The case is still at a preliminary stage, and the appellate court returned the case to the district court for further consideration. This view also does not apply to migrants traveling without minor children because they did not participate in the ACLU lawsuit. The Biden administration has already agreed not to use Title 42 to deport unaccompanied minors and freed them from the title of 42 under new CDC policy for this in July.

Texas rules Friday

However, federal judge in Texas In a separate case on Friday night, it was ruled that the Biden administration cannot exempt unaccompanied children from Title 42 strictly on the basis of their unaccompanied status. The lawsuit was filed by the state of Texas, which argued that Mr. Biden’s immigration policy was detrimental to the state.

In a case filed with the ACLU challenging title 42 under the Trump administration, the Federal Court of Appeals in Washington ruled in January 2021 that unaccompanied minors could be removed under Section 42. That court decision became controversial after the Biden administration announced that no longer intends to remove children traveling alone in accordance with health policy.

In his 37-page ruling Friday night, U.S. District Judge Mark Pitman left his decision for seven days, giving the government the opportunity to appeal. If the ruling is framed, the children will also fall under the DC court ruling.

Representatives of the Biden administration did not respond to requests for comment from any of them.

Lee Gellert, an ACLU lawyer who defended the case in the Court of Appeals, said the decision represents a victory for migrants because the government can no longer use health care law to deny their human rights.

“No court has accepted the government’s view that health care laws may take precedence over our domestic and international obligations,” Mr Gellert said. “We hope that the Biden administration will accept this decision of the Court of Appeal and end Chapter 42 without further litigation.”

1.1 million exceptions

During her first year in office as the Biden administration, she deported migrants about 1.1 million times, with about 150,000 representing deportations of migrant families. Most were sent back across the border to Mexico, but some were in exile to their home countries, including Haiti and Guatemala. The United States has even begun deporting some migrants to third countries, such as Venezuelans who have illegally crossed the border into Colombia, home to 1.7 million displaced Venezuelans, according to the United Nations High Commissioner for Refugees.

The court ruling, if it is not stopped pending further trial, overturns some of the appeals in section 42. Instead of carrying out full deportations of migrants such as thousands of Haitians, the Biden administration deported back to Haiti in September it would be necessary to provide each person with a survey that will take a long time.


The judges acknowledged that their decision would mean more migrants would be detained in close proximity to each other and border officials, making it one of the situations government policies in Chapter 42 sought to avoid to prevent the spread of Covid-19. But the court blamed the Biden administration for failing to adjust its pandemic rationale over time.

“CBZ [Title 42] order in some respects looks like a relic of an era where there were no vaccines, few tests, few therapies and little confidence, “the judges wrote.” In these circumstances, we cannot blindly follow the CDC. “

Write Michelle Hackman

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