Federal judge blocks Trump-era rule used to expel migrants, asylum seekers at the border

The Biden administration can no longer employ a public-health restriction it has used to expel asylum seekers at the U.S.-Mexico border during the COVID-19 pandemic, a federal court has ruled.

“The Court vacates and sets aside the Title 42 policy…and declares the Title 42 policy to be arbitrary and capricious,” wrote Washington, D.C., District Judge Emmet Sullivan, who issued a permanent injunction in a two-page opinion Tuesday.

The development in the litigation over Title 42 — a federal statute the Centers for Disease Control and Prevention invoked in March 2020, citing it as part of the U.S.’s response to COVID-19 — comes as immigration authorities register a record number of migrants at the border. U.S. Customs and Border Protection documented 2.37 million encounters at the U.S.-Mexico border as of Sept. 30.

Over a million of these were processed under Title 42, according to government data, highlighting the Biden administration’s widely criticized reliance on the Trump-era public health order as it handles the record influx of people seeking entry into the U.S.

The Department of Homeland Security, which oversees the federal immigration agencies, said that the Department of Justice would ask the federal court to delay the order’s implementation. The agency confirmed that request was granted on Wednesday.

“Title 42 will remain in place during the period of the stay, allowing the government to prepare for a transition and to continue to manage the border in a safe, orderly, and humane way,” said Homeland Security in a statement.

The American Civil Liberties Union — which along with several other organizations took the federal government to court over the policy — celebrated the court’s decision.

“This is a huge victory and one that literally has life-and-death stakes. We have said all along that using Title 42 against asylum seekers was inhumane and driven purely by politics. Hopefully this ruling will end this horrific policy once and for all,” said Lee Gelernt, the lead attorney from the ACLU on the case.

The CDC under Biden kept Title 42 in place, although it exempted unaccompanied children from being processed under the statue. The Department of Homeland Security emphasized the public health agency’s authority on the matter. In April 2022, the CDC said its director planned to lift the public health order in its entirety the following month. But a federal court in Louisiana blocked the termination, ruling in favor of 24 states who sued the agency.

The U.S. government said at the time that it disagreed with the decision and that the Justice Department intended to appeal the ruling, but that it would continue to enforce Title 42 at the border.

The Biden administration has faced severe criticisms over Title 42. Public health experts from top universities said in an open letter Title 42 had no public health rationale. Meanwhile, immigration experts and advocates have blasted it as a poor border control policy that does not offer long-term solutions

Michael Posner, who served in the Obama administration and is currently the director of the New York University Stern Center for Business and Human Rights, had argued even before Tuesday’s court decision that Title 42 needed to end.

The Trump administration, he told the Miami Herald, used the Title 42 public health provision “as a pretext for basically gutting the asylum law of protection, and simply treating people’s public health, emergency or public health issues without even examining people to see if they actually were a threat to public health. That was done in bad faith.”

Rather than reject it, Posner noted that the Biden administration continued to apply Title 42, and noted its use to process Haitians crossing the U.S.-Mexico border. The statute’s use came into the public spotlight in September 2021, when thousands of Haitians showed up at an international bridge near the border town of Del Rio in Texas.

“Twenty thousand people were put on airplanes back to Haiti without having the right to apply for asylum, which they should have been given,” Posner said.

The arrival of undocumented Haitians, fleeing worsening conditions in their home country, continues posing a challenge to the Biden administration. On Wednesday, the Coast Guard in Puerto Rico said it had rescued a group of 12 Haitians, who said smugglers had abandoned them there five days earlier.

Though it appears that the administration had been scaling back on deportation flights in recent months as the crisis in Haiti worsened, Posner said the policy is still being applied to others, including migrants from Central America.

“They haven’t yet said as they should say that Title 42 should not trump or override someone’s right to seek asylum,” Posner said. “If somebody arrives at the border it’s perfectly appropriate to have them be given a medical exam to see if there’s some threat to our public health, this country’s public health. But if they say they want asylum, they have to be given the right to apply.”

This story was originally published November 16, 2022 at 9:53 AM.