Health Law

US can't use health law to expel migrants to areas where they face persecution or torture, DC Circuit says

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A federal appeals court ruled Friday that the Biden administration can’t use a public health law to immediately expel migrants to countries where they could face persecution or torture.

The U.S. Court of Appeals for the District of Columbia Circuit ruled on the government’s use of a public health law known as Title 42 to expel migrants because of COVID-19 risks. Government orders under the law, issued by the Trump and the Biden administrations, covered immigrants trying to enter the United States from Canada or Mexico without valid travel documents.

Plaintiffs in the case were six families covered by the latest order, which requires expulsion for immigrants here illegally, with the exception of unaccompanied minors. The plaintiffs claimed that the order violates laws regarding asylum and withholding of removal and the Convention Against Torture.

The appeals court said the plaintiffs were likely to succeed on their argument that the expulsions violate legal limits on where they can be sent.

“In short,” the opinion said, “the executive can expel the plaintiffs from the country. But it cannot expel them to places where they will be persecuted or tortured.”

The court said the plaintiffs will suffer irreparable harm absent an injunction, citing examples of people who have “already been forced to walk the plank” into countries where they face persecution or torture.

“The record is replete with stomach-churning evidence of death, torture and rape,” in such cases, the appeals court said.

The appeals court didn’t reach the plaintiffs’ argument that they are entitled to apply for asylum before expulsions. The issue “may be the closest question in this case,” and it deserves further consideration at the trial-court level, the appeals court said. But at this stage of the litigation, the plaintiffs haven’t shown that they are likely to succeed on that argument.

Lee Gelernt, deputy director of the American Civil Liberties Union’s Immigrants’ Rights Project, is the lawyer who argued the appeal for the immigrants in the case, Huisha-Huisha v. Mayorkas. He called the decision “an enormous victory” in a press release.

“We have argued from the beginning that the Title 42 policy is illegal and inhumane, and every court to address the issue has agreed,” Gelernt said.

Lawyers for Civil Rights also praised the decision in a press release.

Huisha-Huisha now provides a bulwark against the federal government’s efforts to illegally deport immigrants, especially to countries such as Haiti that are experiencing conflict, turmoil, upheaval or environmental cataclysm,” Lawyers for Civil Rights’ press release said.

Hat tip to Reuters, the New York Times and Bloomberg Government, which covered the decision.

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