An appeals court on Thursday suspended a federal judge’s order that would have barred the Biden administration from using a pandemic-era border policy to expel migrant families with little to no due process.
The federal judge’s order paused by the D.C. Circuit Court of Appeals would have required the Biden administration to process all migrant families with children under U.S. immigration laws, which allow them to seek asylum or other forms of humanitarian refuge.
At the center of the court case is a public health authority, colloquially known as Title 42, which U.S. border officials have used to expel hundreds of thousands of migrants without court hearings or asylum screenings since March 2020, when the Trump administration enacted the policy.
The Biden administration has strongly defended the emergency Trump-era policy, arguing it is needed to avert coronavirus outbreaks inside migrant holding facilities. Unlike the Trump administration, the Biden administration has not been using Title 42 to expel unaccompanied migrant children.
During President Biden’s tenure, U.S. authorities along the southern border have used Title 42 to expel most single adult migrants. However, they have been expelling smaller percentages of families than in the Trump administration, largely due to Mexico’s reluctance to accept young, non-Mexican children.
In August, for example, U.S. border officials encountered 86,000 migrant parents and children traveling as families. Roughly 80% of them were processed under immigration law and allowed to seek U.S. refuge, while the rest were expelled under Title 42, according to Customs and Border Protection data.
U.S. District Court Judge Emmet Sullivan has found multiple times that the 19th-century public health law cited by the government does not authorize the rapid expulsion of migrants and asylum-seekers.
On September 16, Sullivan ordered the government to stop expelling migrant parents and children traveling as families but paused his order for 14 days. On Thursday, the D.C. Circuit Court of Appeals granted a Biden administration request to pause Sullivan’s order while it reviews the government’s appeal.
Since the outset of the pandemic, advocates for migrants have condemned the expulsions, arguing that they violate U.S. asylum laws. But the outcry over Title 42 has intensified in recent days as the Biden administration has used the policy to expel thousands of Haitians encountered along the southern border.
As of Thursday night, the U.S. had carried out 57 deportation flights to Haiti, expelling 6,100 migrants in just 12 days, according to Department of Homeland Security data shared with CBS News.
Lee Gelernt, the American Civil Liberties Union lawyer who filed a lawsuit against the Title 42 expulsions, said the D.C. Circuit’s decision was disappointing but called it “just an initial step in the appellate litigation.”
“Nothing stops the Biden administration from immediately repealing this horrific Trump-era policy,” Gelernt added. “If the administration is making the political calculation that if it acts inhumanely now it can act more humanely later, that calculation is misguided and of little solace to the families that are being sent to Haiti or brutalized in Mexico right now.”
Camilo Montoya-Galvez is the immigration reporter at CBS News. Based in Washington, he covers immigration policy and politics.