Biden Administration Loses Row Over Covid-19 Immigration Rules


More asylum seekers, immigrant families, and unaccompanied minors likely will be stopped at the U.S. border following a Texas federal court decision blocking Biden administration rules that except children from a denial-of-entry and rapid removal process.

The Centers for Disease Control and Prevention didn’t engage in “reasoned decisionmaking” when it adopted rules in July and August 2021 that lifted the “Title 42 process” for unaccompanied alien children at the Mexican and Canadian borders, the U.S. District Court for the Northern District of Texas said.

42 U.S.C. §265 authorizes the CDC to prohibit entry into the U.S. of people who come from countries where a communicable disease is present.

The rules suspending the process are therefore arbitrary and capricious, and the Biden administration can’t require the Department of Homeland Security to automactically allow UACs to enter or remain in the U.S. pending the outcome of the case, the court said in an opinion by Judge Mark T. Pittman. The order, however, doesn’t require DHS to remove anyone.

The U.S. Court of Appeals for the D.C. Circuit on March 4 also gave the Department of Homeland Security the go-ahead to carry out Title 42 expulsions of families and UACs, with the exception of people from places where they might be persecuted or tortured.

Trump Administration Actions

The Trump administration originally issued a public health order and subsequent rule in October 2020 to prevent immigrants who potentially have Covid-19 from entering or remaining in the country.

Texas challenged the 2021 Biden administration revisions to the rules. After finding that the state had standing to sue to invalidate them, the court entered a preliminary injunction to prevent the government from enforcing them.

The 2021 rules are “completely contrary” to the October 2020 order’s purpose, and nothing happened between late 2020 and mid-2021 relative to the Covid-19 pandemic to justify the agency’s action, the court said.

Texas also introduced evidence that the U.S. Border Patrol chief was told to stand down from enforcing removal procedures against UACs 18 days before an earlier rule introducing the exception took effect, without having been consulted, it said.

“It is generally arbitrary or capricious for an agency to depart from a prior policy sub silentio, so an agency’s departure from a prior policy must have good reasons,” the court said. The government didn’t explain those reasons here, it said.

There also was no proof the CDC considered Texas’ interests—including its interest in preventing the spread of Covid-19 in areas close to the Mexican border—when it adopted the rules, the court said.

The Texas Attorney General’s Office, Immigration Reform Law Institute, America First Legal Foundation, and Matt Crapo of Alexandria, Va., represent Texas. The U.S. Attorney’s Office for the Northern District of Texas represents the U.S.

The case is Texas v. Biden, N.D. Tex., No. 21-cv-579, 3/4/22.


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