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The ACLU Will Try To Stop The Use Of Title 42, A Trump-Era Migrant Policy


The American Civil Liberties Union is suing the Biden administration over a policy at the border. The ACLU and other groups disagree with federal officials continuing a Trump administration practice of blocking most migrants from entering the country over concerns about COVID. Here's White House spokesperson Jen Psaki defending that practice.


JEN PSAKI: The president views it as a public health measure where the CDC is going to continue to provide guidance on how long it needs to be in place.

INSKEEP: The ACLU's Lee Gelernt is the lead attorney in this litigation and is in Brownsville, Texas. Good morning.

LEE GELERNT: Good morning.

INSKEEP: And welcome back to the program. What, in your view, is the administration doing wrong?

GELERNT: Well, to begin with, we believe the policy is illegal, that Congress has passed the public health laws not to allow deportations but to allow testing and quarantine. But beyond that, we think it's inhumane. It is sending families back with little children to severe danger. And I think one of the problems is that it's just become an abstraction. The border is out of sight, out of mind. What the United States government is doing is literally pushing families back over the border. Cartels are sitting and waiting for them. They're literally sitting ducks. They're being kidnapped and potentially killed right after they cross the border. And the United States government is complicit in this. They are hiding behind CDC. But whenever we ask CDC, CDC deflects to the White House and DHS. This does not seem like a public health decision...

INSKEEP: And you are, I believe, suing the secretary of Homeland Security over the administration's use of Title 42. This started under a Republican administration. Did you expect that the policy would simply change when a Democratic administration came in?

GELERNT: We did, and we were extremely disappointed. But one of the things that we did is say to the administration, yes, we will talk to you. They approached us and said, look. The Trump administration depleted the asylum system. We need some time to build capacity during COVID. We said, fine. We thought we would give them a month. It turned into two months. We're now into the end of August. This started in February talking to them. So we have felt like we have given them more than enough time to build the capacity. And one of the critical things about what CDC said is CDC had said this is not impossible. You just need to take mitigation steps. And that's what the administration said they were going to do. They haven't done that. And there's no end in sight to the policy.

INSKEEP: Do you see no public health value at all in turning away people because of COVID concerns? I can imagine not only people being anxious about the general population, which I know becomes a political thing, but I could also imagine COVID spreading in crowded detention centers.

GELERNT: Well, to begin with, we're suing right now about families who don't get detained. But beyond that, I think there's always a risk of COVID, and we do not want to be cavalier about it. But you need to take mitigation steps. I mean, think about the whole country. We're going to games. We're eating outside. Vaccine is readily available. No one, I think, in their right mind would suggest there's zero risk of any migrant having COVID. But, of course, there's testing capacity. Through private money, we're testing families before they come into the U.S. now. But the federal government should be dealing with that. I think what CDC has said is, look. Take basic mitigation steps.

The administration, to their credit, is allowing children in, and they've taken basic mitigation steps. They haven't done that with families, which makes me think there's more than public health justifications going on here. I mean, we have given them now seven months to build new facilities, to build outdoor tents for processing, to set up testing regimes, to set up quarantine regimes. And I think it's now clear that they are not going to do it unless pushed.

INSKEEP: As you mentioned, the administration has said, listen. We have a lot we need to change. We have a very different policy than the last administration, which made a lot of changes at the border. Do you give the administration credit for moving immigration toward more humane standards as you view them?

GELERNT: I think absolutely. I think there's a lot of people who want to say, no, this is no different than the prior administration. I'm not one of those people. They've done a lot of good things. But I do think on this Title 42 policy, they have not moved in the right direction. This is a critical issue because families are being sent back right into the hands of cartels. So this is one of those issues that I think is central to the administration doing what's right. But I would definitely say they've taken good steps.

But here I think we have a fundamental disagreement, and that's why this is our first major immigration lawsuit against the Biden administration. I think it's - we've given them more than enough time to set up mitigation, take mitigation steps, which is what CDC has said needs to be done. And month after month went by without them doing it. And now there doesn't seem to be any immediate. And that's why we went back to court.

INSKEEP: Mr. Gelernt, it's a pleasure talking with you again. Thank you so much.

GELERNT: Thank you for having me.

INSKEEP: Lee Gelernt is deputy director of the ACLU Immigrants' Rights Project. Transcript provided by NPR, Copyright NPR.