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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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