The U.S. can continue to swiftly expel migrants under a Trump-era directive, a federal court ruled Friday, but it cannot return them to countries where they may face persecution or torture.
The decision from the U.S. Court of Appeals for the District of Columbia Circuit deals a partial blow to Title 42, the controversial policy under which the government has been removing migrants without allowing them to seek asylum.
“This is a huge victory prohibiting the administration from continuing to send families back to danger without a hearing,” said Lee Gelernt, an attorney with the American Civil Liberties Union, one of the groups to file the case.
“We hope the Biden administration will not appeal the ruling.”
The Biden administration, which has continued the Trump-era policy under claims it is necessary for public health, has expelled hundreds of thousands of migrants under Title 42.
The ruling will force the Department of Homeland Security to conduct so-called withholding and torture screenings to assess the danger of returning a migrant to their home country.
It does, however, allow them to still expel the individual.
“The Executive cannot expel those aliens to places where they will be persecuted or tortured,” Judge Justin Walker, a Trump appointee, wrote on behalf of the three-judge panel.
“That does not make their presence here legal. Nor does it give them a path to asylum. Nor does it stop the Executive from detaining them. Nor does it curb the Executive’s power to expel them to a country where they will not be persecuted or tortured.”
The ruling applies only to families and not single adults, who make up the vast majority of those expelled under Title 42.
The judge also took aim at the underlying public health argument for keeping Title 42 in place.
“The CDC’s [Title 42] order looks in certain respects like a relic from an era with no vaccines, scarce testing, few therapeutics, and little certainty,” he wrote.
“We are doing this out of a public health need,” Homeland Security Secretary Alejandro Mayorkas said at the White House in September.
“It is not an immigration policy. It is not an immigration policy that we would embrace.”