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Government Appeals Border Ruling, but Says It’s Ready to End Expulsions

The Biden administration on Wednesday appealed a court order directing it to repeal a pandemic-era policy that has allowed the rapid expulsion of migrants at the border, but an administration official said the government still planned to end the expulsion policy later this month.

Last month, the U.S. District Court for the District of Columbia deemed the policy, known as Title 42, arbitrary and unnecessary to control the spread of Covid-19. Judge Emmet Sullivan had set a deadline of Dec. 21 to allow the government time to prepare for an expected surge in people seeking entry into the United States once the policy was lifted.

The government said it still planned to meet the deadline, but the appeal suggests it is seeking to preserve the authority of the federal Centers for Disease Control and Prevention to impose public health orders regulating migration at the border when needed in the future.

“The government respectfully disagrees with the court’s decision and would argue on appeal, as it has argued in this court, that C.D.C.’s Title 42 orders were lawful, and that this court erred in vacating those agency actions,” the Justice Department said in its notice of appeal from the court’s order on Nov. 15.

Government lawyers said they were hoping the case could be postponed while an appeals court ruled on other challenges to Title 42 and the C.D.C. proceeded with plans to issue a new set of rules regulating public health emergencies.

More on U.S. Immigration

  • Title 42: Fifteen states have intervened to try to keep in place the pandemic-related policy that allows the government to swiftly expel migrants arriving from Mexico. The motion to intervene seeks to delay a court order that would lift the expulsion measure on Dec. 21.
  • Top Border Official Resigns: The commissioner of U.S. Customs and Border Protection resigned after a standoff with the Homeland Security secretary, who had demanded that he either step down or be fired.
  • Waiting for Refugee Status: As the Biden administration prioritizes resettling people fleeing Ukraine and Afghanistan, many other refugees are waiting years in a system struggling to rebuild.

An administration official said that the Justice Department planned to ask that appeals court to rule that the C.D.C. was within its legal authority when it sought to end Title 42 on its own this year. That attempt was blocked when several states, most led by Republicans, filed suit claiming that a surge in migration expected after Title 42 is lifted could strain resources in their states.

Border officials have invoked the health order, adopted in 2020 under the Trump administration, to conduct 2.4 million expulsions, returning migrants in most cases to Mexico or to their home countries aboard chartered planes.

In ordering an end to the policy, Judge Sullivan granted the Biden administration five weeks to phase it out, after the government requested an emergency delay to give it time to prepare for as many as 18,000 border crossers a day.

Some legal scholars said that the appeal suggested that the government was not abandoning Title 42 altogether, or conceding that the policy was illegal.

“They want to be able to use Title 42 if they choose to do so in the future,” said Steve Yale-Loehr, immigration law professor at Cornell Law School.

The C.D.C. announced in April that Title 42 was no longer necessary to control the spread of the coronavirus on the border, given the availability of vaccines and other measures to fight the virus. But that triggered the challenge from the mainly Republican states seeking to keep the order in place.

In the last year, federal courts in Louisiana and Washington have considered separate cases over the order, which empowers U.S. border authorities to turn away migrants who lack visas.

Some of those who have challenged the expulsions on behalf of asylum seekers have expressed doubt that the government is prepared to discard the powerful border enforcement tool, which they have blamed for thwarting the rights of migrants fleeing danger and persecution in their homelands.

“Contrary to the states’ assumption, the Biden administration will appeal and will continue its vigorous legal defense of the unlawful and outdated Title 42 policy,” said Lee Gelernt, a lawyer with the American Civil Liberties Union and legal counsel on behalf of asylum seekers in the Title 42 case in the D.C. court.

Last week, the states said in a court filing that even if the Biden administration appealed Judge Sullivan’s order, that would not prevent an “impending catastrophe” at the border, an indication that the Republican states would seek a stay of the policy’s termination in a circuit court.

An appointee of President Bill Clinton, Judge Sullivan is unlikely to allow the states to intervene in his case, which was filed by the A.C.L.U. on behalf of asylum seekers, and the case could end up in the Supreme Court, legal scholars say.

A bipartisan immigration proposal crafted by Senators Kyrsten Sinema, Democrat of Arizona, and Thom Tillis, Republican of North Carolina, would reportedly require the extension of Title 42 for one or two years while providing a path to legalization for some two million undocumented immigrants already in the United States.

Under that proposal, Title 42 would remain in place while the government prepared facilities to hold immigrants at the border until their cases were decided by the courts on an expedited timetable. It is unclear whether the proposal in the lame-duck session of Congress would garner the 60 votes it would need to pass the Senate, including 10 from Republicans.

Once the measure is repealed, the Homeland Security Department has said that it would revert to previous procedures that it utilized at the border, including fast-track deportations, or expedited removal of migrants, and detention and prosecution for illegal entry. It would also decide asylum cases on an accelerated basis, a process which it has been recently testing.

Some of the measures under consideration are evocative of those used by former President Donald J. Trump to crack down on unlawful border crossings. One of them would prohibit migrants who are fleeing persecution from seeking refuge in the United States unless they were first denied safe harbor by another country, like Mexico.

Human-rights advocates have condemned the administration for considering any action that would violate the right of anyone who touches U.S. soil to request protection from persecution.

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