A recently enacted court order by a federal judge in Washington, D.C., gives migrant families a means of entering the U.S. despite the public health measure known as Title 42 that has blocked nearly 2 million asylum seekers from crossing the border since the start of the Covid pandemic.

The order, which restores the ability of migrant families to cite fear of persecution and torture as a path toward seeking protections in the U.S., comes at the same time as a separate federal judge in Louisiana has prevented the Biden administration from lifting Title 42.

The new guidance issued to Customs and Border Protection and Immigration and Customs Enforcement went into effect at 12:01 a.m. Monday, according to documents obtained by NBC News. It states that if CBP officers notice at least one member of the family shows a verbal or nonverbal “manifestation of fear” of being expelled, they should either be released into the U.S. with a court date or sent to an asylum officer who can “determine whether the noncitizen is more likely than not to be persecuted or tortured in the country to which they would be expelled.”

Immigrants from Ecuador warm themselves by a fire along a gap in the U.S.-Mexico border
Immigrants from Ecuador warm themselves by a fire along a gap in the U.S.-Mexico border barrier in Yuma, Ariz. on Sunday as they await processing by the U.S. Border Patrol.Mario Tama / Getty Images

A Department of Homeland Security official speaking on condition of anonymity told NBC News that while there is still some confusion among border agents and officials over the conflicting orders, the new ruling protecting migrant families is “the first nail in the coffin of Title 42.”

The number of families being expelled under Title 42 had already been dwindling, often based on Mexico’s refusal to take families back into already crowded shelters. Of more than 54,000 migrants who crossed the border as part of a family in April, only a little over 7,000 were expelled under Title 42. Overall, families made up 23 percent of migrants encountered at the U.S-Mexico border last month.

Title 42 was due to expire Monday before Judge Robert Summerhays of the Western District of Louisiana issued a preliminary injunction that kept the Centers for Disease Control from lifting it.

In a message to migrants considering crossing the border, DHS Secretary Alejandro Mayorkas said in a video posted on Twitter Tuesday that “the restrictions at our Southwest border have not changed. Single adults and families encountered will continue to be expelled, where appropriate, under Title 42.”

In practice, however, many migrant families who would have once been refused entry without asylum screenings, will now have a chance at entry, said Lee Gelernt, an ACLU attorney representing migrant families in the D.C. Circuit Court.

It is unclear whether asylum officers will allow migrant families to seek asylum, which comes with more protections such as work authorization, or only protections afforded under the Convention Against Torture, Gelernt said. In order to qualify for protections under the Convention Against Torture, a migrant must show that they will likely suffer torture if returned to their home country.

A DHS spokesperson said families who do not qualify for asylum and are not expelled under Title 42 will be placed into proceedings for deportation. 



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