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ACLU: Biden administration making excuses for not changing this Trump-era asylum policy

President Joe Biden’s administration has taken a very different stance from his predecessor on many immigration issues. But it also has also just extended a Trump-era rule that allows some asylum-seekers to be expelled during the COVID-19 pandemic. Amna Nawaz talks to Lee Gelernt of the ACLU about their lawsuit against the government, plus continuing efforts to reunite separated families.

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  • Judy Woodruff:

    On many immigration-related issues, President Biden has taken a very different approach than that of President Trump, or, in some cases, even reversed course.

    But that is not the case for several key issues at the Southern border. In fact, earlier this week, the Biden administration extended a Trump era order that expels migrants seeking asylum during the pandemic.

    Amna Nawaz looks at the issues in play.

  • Amna Nawaz:

    Judy, the policy in question is known as Title 42, and it's now been used by two administrations to expel undocumented migrants.

    The Biden administration had planned to phase it out. The Centers for Disease Control says it's extending Title 42 to prevent the spread of COVID at holding facilities. Some families are exempt, as are all children.

    This comes as the government reports a record number of migrants trying to cross the border. More than 900,000 migrants have been expelled since the policy first took effect. Advocacy groups say the policy is inhumane.

    And the ACLU, which had been negotiating to end it, will resume a lawsuit against the government.

    Lee Gelernt is the lead attorney for the ACLU on this issue. And he joins me now.

    Lee, welcome back to the "NewsHour." Thanks for joining us.

  • Lee Gelernt:

    Thank you.

  • Amna Nawaz:

    So, we should mention you had brought the lawsuit against the Trump administration. The Biden administration inherited that policy, kept it in place.

    You have been negotiating with them. Why are you going back to court now?

  • Lee Gelernt:

    We're going back to court because there's no end in sight.

    You know, we were hoping that the Biden administration would eventually say, enough's enough and end it. But now it's clear that it's not ending it. And CDC has now issued a new order doubling down on the policy.

    You know, when the Biden administration approached us in the beginning of taking office and said, look, the Trump administration depleted the asylum system, we need some more time to build capacity, will you give us a little time and negotiate, and what we said is, OK, but we want desperate families to have a pipeline to get in, in the meantime. That's happened. We're grateful for that.

    Thousands of lives have been saved through that humanitarian pipeline. But what we said is, ultimately, you have to end this policy. And so we negotiated month after month after month. And, finally, it became clear they weren't going to end the policy.

    And I think what's critical about the CDC order is that the government is hiding behind CDC, but CDC repeatedly deflects back to DHS and the White House. And people ought to look at the CDC order very carefully, because it does not say this is a problem that can't be solved. We have to send families back to danger without a hearing.

    It simply says, DHS needs to take the proper mitigating steps and protocols. It repeatedly says that. And that's what we're upset about, is, DHS had seven months to take those steps and didn't take those steps.

  • Amna Nawaz:

    I just want to be clear about this, because you're absolutely right. The White House will say, we are following the public health experts, the scientists on this.

    CDC did extend this policy. And DHS said they will enforce it, as CDC tells them to. But they're arguing there's a public health emergency, right, at a time where COVID cases are rising across the country, especially with the spread of this Delta variant. You're saying they could fix it if they wanted to, but they don't want to.

  • Lee Gelernt:


    I think that that's what's so important to look at what CDC is actually saying. CDC's medical professionals not saying, this is not a problem — this is a problem we can't solve. You need to send these families back to danger. They are simply saying, you need to take the mitigating steps.

    They haven't taken those steps. We don't know what we can do to push them, other than going back to court. It seems like something other than public health justifications are at play here. And that's what public health professionals have said.

    And what I think is really happening is that the border is sort of out of sight, out of mind, and it's become this abstract issue. I mean, I am down here at the border talking to people. And what they tell you is, the United States government is literally pushing families back across the border. Cartels are waiting for the families the minute they cross.

    They're being kidnapped. Every possible thing is happening to these families, horrendous, horrific abuse. I mean, the country is in a much better place than it was when we brought this suit. Vaccines are readily available. Testing is readily available. I mean, at first, back in the Trump days and early Biden, the government was saying, well, our personnel would be at danger.

    They have long had the opportunity to be vaccinated. So I think everything is going by the wayside. And the Biden administration is now just coming up with one excuse after another not to end Title 42. No one is being cavalier about COVID, but there are steps they can take. We can't keep sending families with little children back to danger.

  • Amna Nawaz:

    But, Lee, even when you look at the numbers, setting aside COVID restrictions or concerns at the moment, they are seeing record encounters.

    Recidivism is very high. We should point out we have people repeatedly trying to come again and again and being encountered, the vast majority single adults, being expelled immediately. But there's also a growing number of unaccompanied children coming across the border.

    There's most families, who are also — we should mention, are being allowed to enter into the United States. Can our system, which we know has been vastly under-resourced for years, handle — if, as you say, Title 42 goes away, could the system even handle that?

  • Lee Gelernt:

    Oh, absolutely.

    We have more than enough resources to do it if we want. I mean, this is, if there's a will, there's a way. I mean, first of all, let's just back up. The law requires us to give asylum hearings. There is no question that the United States government has the capacity to do this. And it's just not as many people as the government is suggesting, because the same people are trying over and over.

    If we just process them once, then it's not nearly the numbers that the government's putting out.

  • Amna Nawaz:

    Lee, while we have you, we know you have been working with the federal government and their task force that was set up to reunite separated families under the Trump administration.

    Hundreds of families — hundreds of parents, we should say, still haven't been located when that task force was set up months ago. Where are those efforts today?

  • Lee Gelernt:

    Yes, we are still looking for approximately 300 families we haven't found. We also need to reconnect with hundreds and hundreds of families who we did connect with during the Trump administration, but couldn't offer them anything.

    I think the Biden administration is negotiating with the ACLU in good faith and constructively. But there are more than 1,000 families we think still need to come back, need to be found and brought back. We are hoping to have a system in place in early fall that will allow all those families to come back.

    Each day that goes by where a child doesn't see their parent is a day too much.

  • Amna Nawaz:

    We will certainly be following that story as well.

    That is Lee Gelernt of the ACLU joining us tonight.

    Thank you so much for your time.

  • Lee Gelernt:

    Thanks for having me.

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