Statement in Response to Title 42 Immigration Ruling




The U.S. Court of Appeals for the District of Columbia Circuit ruled that immigrants cannot be deported to torture or persecution in a high-profile case, Huisha-Huisha v. Mayorkas, No. 21-5200. This matter, concerning the exclusion and expulsion of immigrants seeking asylum and humanitarian protection, limits the federal government’s ability to deport people to countries where they would face violence, persecution and torture. 

Under both the Trump and Biden Administrations, the federal government has argued with alarming consistency that discriminatory deportations are authorized under so-called public health provisions, including Title 42. Despite public outcry, particularly in light of the recent Haitian border crisis, the Biden Administration has failed to afford meaningful constitutional or due process protections for immigrants, particularly immigrants of color. 

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. As the Court ruled: the federal government “cannot expel aliens to countries where their ‘life or freedom would be threatened’ on account of their ‘race, religion, nationality, membership in a particular social group, or political opinion’ or where they will likely face torture.” Decision at 27. 

In its ruling, the Court also noted that immigrants “have already been forced to walk the plank into those places, the record is replete with stomach-churning evidence of death, torture, and rape.” Decision at 28. 

In October 2021, Lawyers for Civil Rights (LCR) sent a delegation on a fact-finding mission to investigate conditions at the U.S.-Mexico border. The delegation witnessed deplorable conditions at the border, including the illegal deprivation of medical care to refugees and unlawful barriers to asylum-seekers who are fleeing persecution and violence. The findings are available in a report –– titled “Deprived and Denied: Refugees Facing Abuses At The Border” — along with concrete policy recommendations emphasizing the importance of ending all reliance on Title 42. 

LCR’s report specifically objects to the expedited removal of immigrants without due process. Even in the aftermath of the Haitian border crisis, immigrants are being deported without the opportunity to appear before an immigration judge. Deportations are being executed — often within 45 minutes — bypassing well-established legal protections, including access to consular services and protection. Deportations are also often effectuated without following public health protocols. 

Huisha-Huisha did not meaningfully address confinement conditions, which remain highly concerning at the border. Contrary to public assumption, immigrants do not have consistent access to masks, hygiene products, disinfectants, sanitizers, social distancing, COVID-19 testing or vaccines. Health and safety in immigration detention facilities are being overlooked during a public health crisis,” said Silvana Gómez, a paralegal at LCR who coordinated the border delegation. 

“Today’s decision did not strike down Title 42, but it creates legal and procedural safeguards to protect immigrants. Moving forward, immigrants cannot be deported without an assessment of whether they will be safe. It’s shameful that it took a court ruling against the Biden Administration to enforce this basic right. The federal government must stop deporting immigrants to dangerous places. Immigrants cannot be deported to persecution and torture,” said Ivan Espinoza-Madrigal, LCR’s Executive Director.

LCR filed a federal complaint against border officials in response to the recent Haitian border crisis. On a parallel track, on behalf of Haitian and Central American refugees, LCR is pursuing human rights claims against the U.S. government in the Inter-American Commission for Human Rights. 

LCR’s border report is available here.

The decision is available here: Huisha-Huisha.