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ACLU Lawyer: Biden Is “Hiding Behind CDC” to Keep Pushing Trump-Era Anti-Immigrant Title 42 Policy

StoryJanuary 21, 2022
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As the Biden administration marks its first year in office this week, we look at the president’s ongoing defense of Trump-era anti-immigration policies. Department of Justice lawyers were in court Wednesday to defend the Trump-era order known as Title 42, which has been used to expel hundreds of thousands of migrants at the border without screening them for asylum. The policy was touted as a way to control the spread of COVID-19, even though top CDC officials say it’s not needed to contain the virus. We speak with the ACLU’s Lee Gelernt, who is the lead lawyer challenging the Biden administration’s use of Title 42. He accuses the Biden administration of “trying to hide behind CDC” to play politics and says the policy violates international law and is inhumane, as it forces migrants back into dangerous situations they fled from. “The U.S. government is pushing them back over the border,” he says. “The cartels are sitting there at the end of the bridge waiting for them, and yet we continue to push them over.” Gelernt discusses how he was also a part of negotiations to financially compensate migrant parents separated from their children under Trump’s “zero tolerance” policy, but Biden cut off the talks after facing Republican criticism.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!,, The War and Peace Report. I’m Amy Goodman.

As we continue to look at President Biden’s first year in office, we turn to his ongoing defense of Trump-era anti-immigration policies. On Wednesday, lawyers for the Biden administration were in court defending the Trump-era emergency order known as Title 42, that’s been used to expel over a million migrants at the U.S.-Mexico border without due process or screening them for asylum. The policy was touted as a way to control the spread of COVID-19. This is Sharon Swingle, a Justice Department lawyer, arguing before the D.C. Circuit Court of Appeals.

SHARON SWINGLE: In issuing the Title 42 rule and order, CDC applied its scientific expertise to address a once-in-a-century, highly dynamic public health emergency, involving emergent variants of COVID-19, rising transmission rates and strained healthcare resources, in particular at remote areas near the southwest border.

AMY GOODMAN: She is arguing this just as last week public health experts issued an urgent call to end Title 42, calling it, quote, “scientifically baseless.” This is top Biden medical adviser Dr. Anthony Fauci on CNN.

DR. ANTHONY FAUCI: The problem is within our own country. Certainly immigrants can get infected, but they’re not the driving force of this. Let’s face reality here.

AMY GOODMAN: Since Biden took office, Human Rights First has tracked nearly 9,000 reports of kidnappings, rapes, tortures and other violent attacks against migrants blocked at U.S. ports of entry or expelled to Mexico under Title 42. This is an asylum seeker from Honduras in an encampment in the Mexican border city of Reynosa.

EIDI REYES: [translated] I have been here for four months in the Plaza de las Americas, where the migrant camp is located. All we ask for is help. We want to leave, and we have suffered a lot. There are many sick children. We are in danger. We are afraid because we feel unsafe here.

AMY GOODMAN: For more, we’re joined by Lee Gelernt, the deputy director of the ACLU Immigrants’ Rights Project, was in court this week as the ACLU’s lead attorney in the case challenging Biden’s use of Title 42. He was also part of negotiations to financially compensate migrant parents separated from their children under Trump’s “zero tolerance” policy, but Biden cut off the talks after facing Republican criticism. We’ll get to that.

Lee, welcome back to Democracy Now! I don’t know if you were having trouble in court confusing Trump and Biden’s names, but can explain what you’re doing in court under President Biden, who is so critical of Trump when it comes to immigration policy?

LEE GELERNT: Yeah, Amy, you’re exactly right. So, what happened was that the Trump administration had been trying to end asylum throughout that administration. Finally, it seized on COVID as the silver bullet, not because it was genuinely thinking, “Let’s try and deal with COVID,” but because it wanted to block asylum seekers. So it instituted this policy called Title 42, using a statute from 1893 that had never been used, never been thought to allow for the expulsion of migrants. We thought the Biden administration would come in and end it. The Biden administration, to its credit, ended it for unaccompanied minors, but has left it for everyone else, including families. And that is why we were back in court, for families who are trying to seek asylum are being summarily expelled, no asylum screening whatsoever.

And what I tried to the convey to the court on Wednesday was that the harm is just unimaginable. It’s largely out of sight, out of mind for the American public. In some regions, 20 to 40% of all the families are being targeted for kidnapping, followed by sexual assault and unimaginable brutal treatment. And it’s literally as though they’re walking a plank. The U.S. government is pushing them back over the border. Mothers and fathers are holding their little children’s hands, walking back into Mexico. The U.S. government knows what’s going to happen to them. The cartels are sitting there at the end of the bridge waiting for them, and yet we continue to push them over. And we claim — the Biden administration is now claiming, “Well, we need to do it for COVID.”

But I think what came out of the court hearing was, however it’s going to come out legally, all the judges questioned: Is this really necessary? Why is CDC — why is the Biden administration doing this, when the whole country is open, given that there are vaccines, testing, masks, other PPE equipment, mitigation steps? Why are asylum seekers being singled out for this treatment? And I think the subtext for the court — and I’ll say it explicitly — is this is politics. The Biden administration doesn’t want to open the border. They know that, as Dr. Fauci has said, immigrants are not the problem with COVID, and yet they continue to do it.

AMY GOODMAN: So, can you talk about what is going to happen now and why this is in the Biden administration’s interest to be following through on Trump’s policies?

LEE GELERNT: Yeah, sure. So, the court of appeals will decide the case, and it will turn, to some extent, on some technical legal issues. But the Biden administration doesn’t need to wait for the court. I think there were very clear signals that they ought to be reconsidering this policy. I think that the Biden administration thinks it’s in their political interest to keep the policy so they can ward off attacks saying the border is open. I do not see it that way. Politically, I think the Biden administration is making a huge mistake. They’re getting attacked on border issues no matter what. No matter what the policy is, they will. But right now they’re doing a lot of harm to a lot of people. And I think they just need to stand up. And they made a promise to say we’re going have a more humane border asylum process. We are violating our asylum laws. We are violating our international commitments. You know, as you know, Amy, we said after World War II we would never again send people back to danger. That’s exactly what we’re doing. We haven’t had a functioning asylum system now for two years.

And I think one critical point is that the Biden administration is trying to hide behind CDC. When you go to CDC and ask them why this is happening, they just send you to DHS. And when you look at CDC’s actual order, it’s very clear that CDC thinks we can safely process asylum seekers. All they’ve been saying now is — for months and months and months, is DHS needs to put in basic mitigation steps, and here’s the blueprint to how to do it. DHS is not doing it, and that’s why the lower court finally just said enough is enough. DHS needs to allocate resources. DHS is not saying they can’t — I mean, CDC is not saying they can’t do it. Just take the basic steps. They’ve had so long to just do little things — build some outdoor processing centers, put in a testing regime, start a vaccine protocol — and they’re refusing to do it. So, what DHS is doing is trying to hide behind CDC.

But CDC has been very clear, consistent with every public health expert in the country: You can safely process asylum seekers; just take basic steps. I mean, we’re doing that for the whole country, right? People are going to basketball — one thing I mentioned in court is people are going to basketball games, 18,000 people in these congregate settings. One-third of NBA arenas do not have a vaccine or testing requirement. People are flying. People are going to restaurants. Just take basic steps. What’s happening is asylum seekers are being singled out for political reasons, and the harm is unthinkable.

AMY GOODMAN: Lee, you were also a part of the negotiations to financially compensate migrant parents separated from their children under Trump. But suddenly the Biden administration cut off talks around these reparations, once Republicans started to criticize. Explain what happened. And start off by saying how many families are still separated.

LEE GELERNT: Yeah. Thanks, Amy, for asking about that. So, we believe, the ACLU believes, in excess of a thousand families are still separated. More than 5,500 children, that we know of, were separated originally. We think a thousand remain separated.

And so, there’s two parallel negotiations — there were two parallel negotiations going on. One is just the ACLU and the government, and that’s for everything except monetary compensation. That’s for continuing to find the families, reunite them, hopefully get them services and, most importantly, get them a pathway to remain here so they’re never reseparated and their children are sent back to danger. Those negotiations are still ongoing. Hopefully those will remain constructive. Right now they are constructive.

The other set of negotiations which the ACLU was a part of is compensation, monetary compensation, to settle these tort suits. Those were going fine, up until someone in the government leaked it. There was political blowback. Rather than standing strong and saying, as he did in the second presidential debate, “This was criminal activity, and I’ll do everything I can to make these families whole,” the Biden administration buckled for some reason, ended the talks, walked away — at first tried to say that we walked away. That was completely not true. They haven’t repeated that line. And so now we’re back in court, and the Biden administration will be defending the family separation practice in these tort suits.

And not only that, in the — there’s many of these tort suits, but in the ACLU’s class-action tort suit, not only did we sue the United States, but we sued individual federal officials, like Stephen Miller, like former Attorney General Sessions. So the Biden DOJ is going to be walking into court, not only defending the United States in this horrendous, unprecedented, brutal practice, but also defending Stephen Miller, Sessions, down the line, for their individual roles. I would have thought it would have been unthinkable for the Biden DOJ to walk into court and do that, but that’s where we are.

AMY GOODMAN: And it was Dr. Jill Biden who was put in charge of bringing families together, isn’t that right?

LEE GELERNT: We’re not really sure exactly what’s going on. There is a task force there, but how much Dr. Jill Biden, you know, is — Jill Biden is there working on it day by day, it’s a little unclear.

AMY GOODMAN: Well, Lee Gelernt, I want to thank you for being with us, deputy director of the ACLU Immigrants’ Rights Project.

That does it for our show. Democracy Now! has job openings. Go to Democracy Now! I’m Amy Goodman. Wear a mask.

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