The Centers for Disease Control and Prevention (CDC) announced it is terminating part of a pandemic-related immigration health order that required the Department of Homeland Security (DHS) to expel unaccompanied migrant children.
In 2020, President Donald Trump enacted a pandemic health order using authorities granted by the Public Health Service Act, which is codified in Title 42. Title 42 allows the U.S. government to suspend immigration from countries when there's a risk of a spread of communicable diseases into the United States. Under this emergency order from the CDC, Customs and Border Protection (CBP) officials were ordered to expel migrants crossing the Canadian and Mexican borders under the pretext of stopping the spread of COVID-19. Most of the expulsions happen at the southern border, with more than 400,000 Title 42 expulsions there this year compared to the northern border's 5,421.
The CDC order conflicted with longstanding U.S. practice, which allows people to cross into the U.S. to make an asylum claim. In February* 2021, the Biden administration chose to exempt unaccompanied minors from expulsion. But the state of Texas sued the administration for the exemption, and the U.S. District Court for the Northern District of Texas ruled in favor of the state. The court determined that the Biden administration could not exempt unaccompanied minors from the expulsion orders. In response to the ruling, in order to keep from having to expel the children, the CDC decided to get rid of that portion of the emergency order altogether.
According to CBP, from October 2021 to February 2022, up to 58,503 minors traveled alone across U.S. borders. Many of them are fleeing violence or persecution in their home countries. The organization Human Rights First reported one 17-year-old boy fled Mexico because cartel members threatened him at gunpoint. Another 17-year-old in the same report also fled to the border after similar death threats. In 2020, Human Rights First tracked 1,114 violent attacks against migrants sent back over the Mexican border under the order. Of the 1,114 attacks, 265 were kidnappings or attempted kidnappings against children. According to records obtained by Human Rights First in 2020, DHS expelled up to 1,000 unaccompanied minors within the first six weeks of the CDC's order.
In one documented instance, CBP expelled two unaccompanied minors, a 12- and 15-year-old, to Ciudad Juarez, Mexico. They were left homeless and on their own until picked up by Juarez child welfare.
Taylor Levy, an immigration attorney in Texas, says she hopes the Biden administration and the CDC will revoke the health order for everyone, not just minors, and allow migrants to start seeking asylum again without facing immediate expulsion under the order.
"I welcome the CDC's decision, and I am happy the Biden administration took these steps," Levy tells Reason, "but it doesn't go far enough."
The CDC's decision to not expel migrant children also comes off the heels of another immigration court decision litigated by the American Civil Liberties Union. In that case, the U. S. Court of Appeals for the District of Columbia Circuit ruled that the U.S. government could not expel migrant families to places where they could face persecution or torture. Judge Justin Walker, the author of the opinion on the case, also wrote that the CDC's order was "questionable" in protecting against COVID-19 and it was far from clear whether the health order served any purpose.
The CDC has concluded that there's no COVID-19 risk that is mitigated by expelling unaccompanied minors. It cites vaccination rates, common work force virus testing, and other disease mitigation efforts as enough protection from the virus.
The Biden administration has not officially announced whether it plans to end the emergency order in its entirety. But, according to Buzzfeed News, top officials at DHS plan to end it sometime in April.
*CORRECTION: This story has been updated throughout to correct a mischaracterization of Title 42. It was also edited to correct the month in which the Biden administration began exempting minors.