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April 6, 2022
Posted by Kai Mueller
On April 1, the Centers for Disease Control and Prevention (CDC) ordered the termination of the “Title 42” procedure, a method originally created by the Trump administration at the outset of the Covid pandemic to deport asylum seekers without hearing on supposed public health grounds. The termination is to go into effect on May 23, 2022. The termination of the Title 42 procedure has been long overdue.
The consequence of the Title 42 process had been a circumvention of immigration laws that protect the rights of asylum seekers who face risk of persecution or torture in their countries of origin. This CDC order resulted in border agents expelling thousands upon thousands of migrants without taking into account the irreparable harm that may await them.
The Biden Administration had kept this rule in place and used it over 1.2 million times to block migrants from seeking safety in the United States despite criticism that the policy improperly relied on the Covid-19 crisis to violate legal protections guaranteed to refugees under both U.S. and international law.
On September 16, 2021, a U.S. District Judge had granted a preliminary injunction against expulsion of migrant families without any hearing, in response to a lawsuit filed by the American Civil Liberties Union and others. After a stay pending appeal, the D.C. Circuit affirmed a narrower version of the injunction on March 4, 2022, holding that the public health law did not override statutory protection against return to a country where an asylum seeker was likely to be persecuted. The injunction followed mounting pressure from immigrant rights groups and voices in academia, including amicus briefs co-submitted by Harvard Law Human Rights Program Director Gerald L. Neuman and Deborah Anker, Founding Director of the Harvard Law Immigration and Refugee Clinic, to end the Title 42 policy. The April 1 order of the CDC does not admit the illegality of the Title 42 process, but it would terminate it altogether, subject to the possibility of later reactivation.
It has long been clear that the severe violations of asylum seekers’ rights caused by Title 42 outweighed the purported health benefits related to pandemic control. Hence, the Biden administration’s repeated defense of this regressive Trump-era policy has been a disappointment to those who had hoped for a more humane and rights-based policy toward refugees and immigrants. Regrettably, the termination order itself may be challenged in other courts.
For further information regarding the litigation of the Title 42 procedure, you can watch the webinar “Abusing Public Health Powers at the Border: Litigating “Title 42” Deportations Before the Inter-American Commission on Human Rights” organized by HRP on November 8, 2021, below.
September 20, 2021
Court Issues Ruling Aligned with Amicus Brief Submitted by HLS Professors Protecting the Rights of Asylum Seekers During the Global Pandemic
On September 16, a U.S. District Judge granted a preliminary injunction against expulsion of migrant families without any hearing, in response to a lawsuit filed by the American Civil Liberties Union and others.
Previously, the Trump administration had invoked a public health law, Title 42, section 265, as a substitute measure to deport asylum seekers who had entered the United States. The consequence of this alternative procedure was an abandonment of immigration regulations that protect the rights of asylum seekers who may face risk of persecution or torture in their countries of origin. This CDC order resulted in border agents expelling tens of thousands of migrants without taking into account the possibility that they could face irreparable harm if not admitted to the United States.
The Biden Administration has kept this rule in place, despite criticism that the policy improperly relies on the Covid-19 crisis to circumvent legal protections guaranteed to refugees under both U.S. and international laws.
The court’s ruling requires the U.S government to end the Title 42 policy by the end of the month.
The court’s decision is in line with a February 2021 amicus brief submitted by Gerald L. Neuman, Director of the Harvard Human Rights Program, and Deborah Anker, Founding Director of the Harvard Immigration and Refugee Clinic, joined by other prominent scholars of refugee and immigration law. Commenting on the District Court’s decision, Professor Neuman, who is the J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law, observed that “the court’s injunction provides a very welcome correction to the abusive interpretation of public health authority for xenophobic purposes by the Trump administration, and vindicates the statutory and international law commitments of the United States.”
If upheld on appeal, the preliminary injunction will have an immediate and significant impact on the safety of migrants who cross the United States’ southern border. They will remain subject to expedited removal procedures, but with the right to be heard on their need for protection.
The government has already appealed the preliminary injunction, and is seeking to have it stayed by the D.C. Circuit. Neuman plans to participate as an amicus in opposing the stay, and in later phases of the litigation.
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