Texas Says Biden Admin. Ignores COVID-19 Immigration Rule

By Dave Simpson
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Law360 (April 22, 2021, 9:41 PM EDT) -- Texas' attorney general said in a federal court complaint Thursday that the Biden administration was not abiding by Trump-era U.S. Centers for Disease Control and Prevention rules meant to reduce the spread of COVID-19 by restricting illegal immigration.

Ken Paxton's suit argues that President Joe Biden's administration is violating a slew of laws by failing to follow a public health statute known as Title 42, enacted by then-President Donald Trump's CDC last year. The rule authorizes the government to rapidly expel individuals at the border to prevent the spread of disease.

But Texas said Thursday that the new administration was easing up on the rule, especially as it pertains to unaccompanied children.

The influx of migrants "who are or might be infected with COVID into the United States, defendants' unlawful actions imperil the public health of Texas and the United States, and weaken the ability of the economies of Texas and the United States to recover, through reopening, from the effects of the pandemic," the suit alleges.

The suit alleges that the administration is violating the Immigration and Nationality Act, the Public Health Service Act of 1944, and the Administrative Procedure Act. It cites to a U.S. Supreme Court ruling last year  that blocked the Trump administration from terminating the Deferred Action for Childhood Arrivals program, preserving protections for hundreds of thousands of young unauthorized immigrants.

In that fractured ruling, the justices found that the U.S. Department of Homeland Security's decision to terminate the program was arbitrary and capricious.

The majority explained that former acting DHS Secretary Elaine Duke, who has written a memo justifying the rescission of the Obama-era program, had not sufficiently explained the department's reasoning, thus violating administrative law.

On Thursday, Texas hit the Biden administration with this same logic. A February order from the Biden administration "categorically eliminates" the use of Title 42, the Lone Star State said.

"By omitting any analysis of continuing at least some use of Title 42 for [unaccompanied migrant children], defendants 'failed to consider important aspects of the problem' before it," the suit says.

The policy in question, first invoked in an interim rule published by the CDC in March 2020 and implemented in its current form through an agency order in October, stems from a portion of Public Health Service Act of 1944, codified under Title 42, sections 265 and 268, of the U.S. Code.

Texas says that data from the U.S. Immigration and Customs Enforcement indicate that the Biden administration "is not detaining the overwhelming majority of members of family units whom [U.S. Customs and Border Protection] encounters at the border and is releasing the few it does process in Family Residential Centers in a matter of days."

This runs counter to arguments by human rights groups that have recently bashed the Biden administration for its continued use of Title 42.

Human Rights First, a national legal advocacy group, tore into the Biden administration Tuesday for continuing rapid border expulsions under Title 42, which the group said is "wreaking havoc" at the border.

In a 34-page report, the organization called the policy "illegal, immoral, and unneeded."

The report cited calls from medical, public health and legal experts, lawmakers and former government officials to mitigate the rule's effect. Rather than an effort to protect the public, DHS expulsions are being made to slow immigration as the Biden administration attempts to revamp the U.S. immigration system, Human Rights First claimed, pointing to remarks by White House press secretary Jen Psaki on March 22.

"Despite his frequent pledges to reverse President Trump's cruelty at the border, President Biden is continuing a policy that is wreaking havoc. It endangers children, drives family separations, and illegally returns asylum seekers to danger, including Black and LGBTQ refugees forced to endure bias-motivated violence in Mexico," HRF said in the introduction to the report, titled "Failure To Protect."

"The policy also creates disorder and pushes asylum seekers to cross into the United States between ports of entry. Rather than protecting public health, the expulsion policy threatens the health and safety of asylum seekers and migrants," the report continued.

To support HRF's position that the policy is actually detrimental to public health, the report linked to two letters signed by public health experts from institutions including Harvard University, Columbia University, the University of Michigan, the University of Texas and the University of California, Berkeley, calling on the government to mitigate the effect of the policy.

Representatives for the parties did not immediately respond to requests for comment Thursday.

Texas is represented by Office of the Attorney General of Texas, Gene P. Hamilton of America First Legal Foundation, and Christopher J. Hajec and Matt A. Crapo of the Immigration Reform Law Institute.

Counsel for the federal government was not immediately known Thursday.

The case is State of Texas v. Biden et al, case number 4:21-cv-00579, in the U.S. District Court for the Northern District of Texas.

--Additional reporting by Jennifer Doherty and Suzanne Monyak. Editing by Peter Rozovsky.

For a reprint of this article, please contact reprints@law360.com.

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