A district judge ruled Friday that the Biden Administration must continue to expel migrants under Title 42, a COVID-19-related health measure first implemented under President Donald Trump. The decision delivers a blow to the Administration’s plan to end the controversial program on May 23.
The ruling prevents the Administration from ending the policy until a full trial on the merits is held, which is likely to take many months.
Judge Robert Summerhays from the U.S. District Court Western District of Louisiana Lafayette Division sided with attorneys general from Arizona, Missouri, and Louisiana, who brought a lawsuit on April 3 arguing that the Administration’s move to end Title 42 failed to meet standards set by the Administrative Procedure Act. Republican and some moderate Democratic lawmakers have publicly criticized the Administration’s effort to end the program, citing Department of Homeland Security (DHS) predictions that doing so would trigger an increase of migrants at the U.S.-Mexico border.
Immigrant rights advocates argue that Title 42 is illegal because it prevents people from exercising their international right to claim asylum. It has also largely failed to deter migration, they say. Since the Trump Administration implemented Title 42 in March 2020, U.S. Customs and Border Protection (CBP) has conducted more than 1.8 million expulsions, mostly at the Southern border, denying many migrants the legal right to apply for asylum.
Summerhays’s ruling marks a major victory for critics of the Biden Administration’s position on Title 42, and and is the latest example of the federal judiciary stymying Biden’s attempts to maintain control over U.S. immigration policy.
Title 42 was problematic from the start
Title 42 was controversial from the moment of its implementation, with immigrant advocates, as well as public health experts including Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, almost immediately denouncing it for preventing people from exercising their right to claim asylum, and for the lack of scientific evidence that expulsions prevent the spread of COVID-19.
But on April 1, when the U.S. Centers for Disease Control and Prevention (CDC) announced that it would lift the Title 42 order at the end of May, the already-controversial policy collided with the politics of midterm elections. On April 7, five Democrats and six Republican Senators introduced a bill that would ban the Biden Administration from lifting the measure without a detailed plan to prevent a wave of migration in its wake. The bill now has 27 cosponsors, including 13 Democrats.
Those same lawmakers have also worked to delay a COVID-19 and Ukraine aid spending package until the Senate agrees to a vote on the legislation. The gridlock led to Congress ultimately decoupling Ukraine aid from COVID-19 relief the White House has been pushing for in order to move faster.
Arizona, Missouri, and Louisiana’s suit, which more than 20 states have since joined, argues that Title 42 must remain in place to stop a “catastrophe” at the border.
On April 27, Summerhays granted a temporary restraining order in the case, forcing DHS to halt its plans to prepare for the end of Title 42. DHS had issued a detailed memorandum to prepare for an expected influx of migrant arrivals as a result of ending the measure. On Wednesday, Summerhays extended the restraining order to last until May 23, or until he issued his final ruling, which came Friday.
On May 20, Summerhays enjoined the order to end Title 42. He also ordered DHS to keep records of how the policy is being applied. Per the judge’s order, DHS must now file monthly reports indicting the number of single adults processed under Title 42 by country, “the number of recidivist border crossers for whom DHS has applied expedited removal”; “the number of migrants that have been excepted from Title 42 under the NGO-supported humanitarian exception process”; and “any material changes to policy regarding DHS’s application of the Title 42 process.”
Arizona Attorney General Mark Brnovich tweeted the ruling is a “significant win for the rule of law and for the safety of our communities.” Eric Schmitt, the Attorney General of Missouri, tweeted the decision was a “huge win for border security.”
Diana Kearney, a senior legal advisor at Oxfam, a migrant rights group engaged in separate litigation to end Title 42, lamented the Friday ruling. “This decision to resuscitate Title 42 fuels the flame of our country’s worst xenophobic impulses, ignores our nation’s legal obligations to respect fundamental human rights, and exposes some of the world’s most vulnerable people to incredible violence,” she wrote in a public statement. “We will continue working with our partners on behalf of all asylum seekers to ensure the Biden administration follows through on its commitment to end this racist policy.”
The current state of play over Title 42
The injunction means that Title 42 will stay in place for the foreseeable future, “making it even more difficult for the Biden administration to manage the border,” says Aaron Reichlin-Melnick, senior policy counsel at the American Immigration Council. “The order will force them to keep the status quo.”
Immigrant right advocates say this ruling will stall years of work to restore asylum access at the U.S.-Mexico border.
“It’s an expression of how extreme our country is,” Linda Corchado, interim executive director of the Las Americas Immigrant Advocacy Center in El Paso, Texas, tells TIME in an interview before the ruling came down. The injunction, she adds, shows how far to the right of the political spectrum the U.S. has gone when it comes to immigration policies. “It’s really upon the rest of this country to start finding its moral compass again…we are beholden to the rest of America and I think the rest of America doesn’t even know itself anymore.”
Border cities like El Paso and San Diego, advocates say, have been prepared for months for the end of Title 42, including by keeping shelter capacity at the ready, coordinating with other advocacy organizations in cities further away from the border, and raising funds for legal representation, transportation, clothes, food, and other resources asylum seekers would need to get to their final destination in the U.S. and begin the asylum process.
An expected influx of migrants at the U.S.-Mexico border
On April 26, DHS Secretary Alejandro Mayorkas issued a 20-page memorandum detailing the government’s plan to address the end of Title 42 by constructing temporary processing facilities, expanding COVID-19 vaccinations, expanding an existing intelligence unit to monitor migration patterns and crack down on smugglers, and the imposition of strict legal consequences on those who commit unlawful entry. It is unclear how much DHS was able to act on its plan before Judge Summerhays’ restraining order was issued.
The injunction comes at the same time that the Biden Administration is before the Supreme Court arguing that it has the authority to end another the controversial Trump-era policy, the Migrant Protection Protocols (MPP), or the “Remain in Mexico” policy. MPP requires migrants seeking asylum in the U.S. to wait in Mexico while their claims are reviewed.
The Biden Administration has been seeking to end the policy since June 2021, but Texas and Missouri challenged the Administration’s attempt to end the program. The states have thus far prevailed, resulting in a court order mandating the Administration continue enforcing MPP in good faith until the Supreme Court rules otherwise.
The Administration is now court ordered to continue enforcing Title 42, too, pending further legal battles. Experts say the Administration’s effort to end Title 42 could mirror its legal battles over MPP. The lawsuit is the latest in a long series of litigation that show that it’s not Congress, or even the executive, that shapes U.S. immigration these days—it’s the federal judiciary.
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