Judge rules U.S. can’t expel migrant families using public health law

A federal judge on Thursday directed the Biden administration to stop using a public health law invoked at the outset of the COVID-19 pandemic to expel migrant families with children from the U.S.-Mexico border.

Judge Emmet Sullivan of the U.S. District Court for the District of Columbia certified all migrant families in U.S. border custody as class members in a lawsuit filed by the American Civil Liberties Union, and barred the government from expelling them under the public health edict, known as Title 42.

Sullivan paused his order for 14 days, giving the Biden administration two weeks to retool its use of the Title 42 authority, which was first invoked under former President Donald Trump in March 2020.

Last year, the ACLU also convinced Sullivan to prohibit the Trump administration from using the Title 42 policy to expel unaccompanied children, who have special protections under U.S. law.

Like in his ruling last year, Sullivan wrote in a 58-page opinion on Thursday that the 19th century public health law cited by the government does not authorize the expulsion of migrants.

Expelling asylum-seekers, Sullivan wrote, denies them the “opportunity to seek humanitarian benefits” enshrined in U.S. law.

While the Biden administration has continued to use the Title 42 authority to expel hundreds of thousands of migrants to Mexico, it exempted unaccompanied children from the policy. It has also been expelling smaller percentages of families than the Trump administration, largely due to Mexico’s reluctance to accept young, non-Mexican children.

In August, U.S. authorities along the southern border expelled 16,200 parents and children traveling as families under Title 42, according to government data. Roughly 80% of migrant families taken into U.S. border custody last month were processed under immigration laws and allowed to request asylum.

For the first few months of President Biden’s tenure, his administration relied on a Trump-era Centers for Disease Control and Prevention (CDC) order to justify the border expulsions. In early August, however, the CDC issued a new order saying the expulsions needed to continue because of the threat posed by the Delta variant and a 21-year high in migrant apprehensions.

Thursday’s ruling is the latest judicial setback for the Biden administration’s border policy, which has been criticized by both Republicans and progressive activists.

Last month, a federal judge in Texas ordered the administration to reinstate the Trump-era policy of requiring asylum-seekers to wait in Mexico for the duration of their court cases. Because the Supreme Court refused to pause that order, U.S. border officials have been working to revive the program, known as “Remain in Mexico.”

The Department of Homeland Security, which carries out the Title 42 expulsions, referred questions about Thursday’s ruling to the Justice Department, which declined to comment.

Advocates for asylum-seekers urged the government to accept Sullivan’s ruling.

“We hope the Biden administration has no plans to appeal and continue to place families in grave danger,” Lee Gelernt, the ACLU lawyer leading the legal challenge against the expulsions, told CBS News.