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Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com


Thursday, March 10, 2022

Court rulings add pressure on Biden to end Trump-era border policy


The Biden administration is under increasing pressure to drop a key Trump-era border policy in the wake of seemingly contradictory court rulings on how to implement the measure amid loosening COVID-19 precautions.

Immigrant advocates have long called for the end of Title 42, which allows for swiftly expelling migrants and blocks them from seeking asylum. The Biden administration retained the policy, with officials consistently arguing the measure is necessary to prevent the spread of the coronavirus.

Two Trump-appointed judges recently authored dueling opinions on Title 42, with one ordering an expansion of the policy and the other imposing new limitations. 

Under a D.C. Court of Appeals opinion, a federal judge ruled the Biden administration cannot use Title 42 to expel families with children to countries where they may face persecution or torture.

But a Texas-based federal judge ruled the Biden administration can no longer exempt children traveling alone from Title 42, giving the White House seven days to begin booting unaccompanied minors.

"There is simply no justification for expelling migrants - especially children - under the guise of public health, especially as COVID-19 rates decrease. Our government has used Title 42 as an excuse to expel migrants and refugee seekers at the border, even when public health and immigration experts have repeatedly condemned its use," Rep. Jesús García (D-Ill.) told The Hill.

"This cruel and undefendable policy goes against our American values, and it's time for President Biden to end the use of Title 42 for good."

The complexities of the two court cases have reinvigorated Democrats and advocates who have long lost patience with the Biden administration for holding onto the Trump-era directive and who see an opening for the administration to finally nix the policy.

The latest order from the Centers for Disease, Control and Prevention (CDC) is set to expire April 6.

"We really think that this is an opportunity. It might not feel like that to the Biden administration, but this is an opportunity to roll up their sleeves and start doing the hard work of operating our world without Title 42," said Jennifer Ibañez Whitlock, policy counsel with the American Immigration Lawyers Association.

Still, it's not yet clear if the Biden administration will challenge the rulings or try to comply with them.

Aaron Reichlin-Melnick, policy counsel with the American Immigration Council, said because the orders deal with different populations, the administration could in theory carry them both out.

But doing so poses both practical and political challenges.

Following the Texas order would mean expelling unaccompanied children on a massive scale.

"Last month, over 10,000 children were encountered at the border. The U.S. government does not have the capacity to expel 10,000 unaccompanied children," Reichlin-Melnick said.

Following the D.C. circuit court order would mean taking the time to interview families before expelling them, a process Reichlin-Melnick said can take over a week to arrange and assess.

That means housing families - a move that comes with its own COVID-19 considerations - and figuring out where to place them, as the administration had ended family detention.

Doing so "would be a betrayal of a number of campaign promises, and in fact, a reversal of one of the things that [President Biden] has taken the most credit for over the last year," Reichlin-Melnick said. 

Experts say the D.C. ruling could prompt the administration to severely limit its use of Title 42 on families. But if the Biden administration does begin interviews to assess the risk of torture and persecution for those expelled, officials would likely face questions over why the same treatment wasn't afforded to children who arrived at the border alone.

The quagmire is why many think it would be simplest for the Biden administration to abandon its use of Title 42.

Such a move, however, would likely tee up lawsuits from the same conservative states that have sued over nearly every one of Biden's immigration policies, scoring a victory in one case that forced the White House to reimplement the Trump-era "Remain in Mexico" policy.

"The Biden administration was playing with fire when it came to Title 42 and they're getting burned now. They had opportunities earlier in the administration to rescind Title 42 and do it on their terms, right. And instead, they kept extending it. And now they're in a really tricky situation," Ibañez Whitlock said. 

"I think the second they rescind Title 42 they'll be taken to court by Texas and Missouri, or any of the other states whose attorneys general have shown a willingness to litigate immigration issues." 

And the administration's public rationale for keeping the Trump-era policy, that it serves to protect immigration agents at the border from coronavirus contagion, has never held much weight with advocates.

Many believe that the Trump administration enacted Title 42 using the pandemic as an excuse to expedite expulsions, and the Biden administration maintained that rationale to have broad powers to ease logistical control over the border.

The Centers for Disease Control and Prevention itself has mostly left the burden of defending the policy to Homeland Security Secretary Alejandro Mayorkas, whose explanations of Title 42's continued implementation have generally been terse allusions to sanitary protections.

But the Biden administration has supported easing domestic COVID-19 prevention measures, like masking and proof of vaccination mandates, leaving immigration advocates wondering why the most intrusive of COVID-related measures remains in place. 

"As pandemic restrictions loosen, the Biden administration must immediately work with the Department of Homeland Security and the Centers for Disease Control and Prevention to address the Title 42 policy that has been used to turn away countless families to countries where they suffer persecution or torture," said Rep. Raúl Grijalva (D-Ariz.).

"Our country must restore our asylum policies to ensure all migrants seeking refuge access a system that is more humane, fair and just," he added. 

Still, the administration would need to make the case that coronavirus conditions have changed sufficiently to justify lifting a policy they've continually extended.

"It's not March 2020 anymore," said Monika Langarica, an attorney with the Center for Immigration Law and Policy at UCLA School of Law.

"There is this massive availability of testing and vaccination that did not exist then. The border is now open to vaccinated nonessential travelers who come here to shop, do other things, as it should be. The fact that it remains closed to people who are seeking protection is contradictory, it's illogical. And it's really unacceptable at this point, coming from the Biden administration."

The D.C. circuit court was highly critical of the COVID-19 rationale in its ruling, calling Title 42 "a relic from an era with no vaccines, scarce testing, few therapeutics, and little certainty." 

Reichlin-Melnick said arguments like that could be used to push back against claims from Texas, which has consistently fought any pandemic mandates that aren't related to immigration. 

"You end up in this very bizarre circumstance where Texas has sued the government repeatedly to stop any vaccine mandates, and yet they're also suing the government to impose a mandate on small children" as a way to limit COVID, he said. 

But the immigration cases have consistently played well with Texas-based federal judges.

"The Supreme Court is going to have to answer a question here," Reichlin-Melnick said. "Who's in control of the nation's borders? Is it federal district judges in Texas, or is it the Executive?"

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