Federal court prevents Biden from ending Title 42

A The district judge ruled Friday that the Biden administration must continue deporting migrants under Title 42, a COVID-19 health measure first implemented under President Donald Trump. The decision is a blow to the administration’s plan to end the controversial program on May 23.

The ruling bars the administration from ending the policy until a full trial on the merits is arranged, which is expected to take several months.

US District Court Judge Robert Summerhays of the Western District of Louisiana Lafayette Division sided with the attorneys general of Arizona, Missouri and Louisiana, who filed suit on April 3 arguing that The administration’s decision to terminate Title 42 did not meet the standards set by the administration’s Procedural Act. Republicans and some moderate Democratic lawmakers have publicly criticized the administration’s efforts to end the program, citing Department of Homeland Security (DHS) predictions that it would trigger an increase in 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 seek asylum. It has also largely failed to deter migration, they say. Since the Trump administration implemented Title 42 in March 2020, US Customs and Border Protection (CBP) has conducted more than 1.8 million deportations, mostly at the southern border, depriving many migrants of legal right to seek asylum.

Summerhays’ decision marks a major victory for critics of the Biden administration’s position on Title 42, and is the latest example of the federal court system thwarting Biden’s attempts to maintain control over U.S. immigration policy .

Read more: Why Judges Are Essentially In Charge Of US Immigration Policy Now

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, denouncing it almost immediately. to prevent people from exercising their right to seek asylum. , and for the lack of scientific evidence that evictions prevent the spread of COVID-19.

But on April 1, when the US Centers for Disease Control and Prevention (CDC) announced it would lift the Title 42 order at the end of May, the already controversial policy collided with the midterm election policy. On April 7, five Democrats and six Republican senators introduced a bill that would bar 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 co-sponsors, including 13 Democrats.

Those same lawmakers also worked to delay a package of COVID-19 and Ukraine relief spending until the Senate agrees to vote on the legislation. The standoff led Congress to ultimately de-link Ukraine aid from the COVID-19 aid the White House is calling for in order to speed things up.

The Arizona, Missouri and Louisiana lawsuit, which more than 20 states have since joined, argues that Title 42 must remain in place to stop a “disaster” at the border.

On April 27, Summerhays granted a temporary restraining order in the case, forcing DHS to end its plans to prepare for the end of Title 42. DHS had issued a detailed memorandum to prepare for an influx expected number of migrant arrivals following the end of the measure. On Wednesday, Summerhays extended the restraining order until May 23, or until it issues its final decision, which came on Friday.

On May 20, Summerhays filed the order to end Title 42. He also ordered DHS to keep records of how the policy is enforced. According to the judge’s order, DHS must now file monthly reports showing the number of single adults treated under Title 42 by country, “the number of cross-border repeat offenders for whom DHS has requested expedited removal”; “the number of migrants who have been excluded 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 decision is a “significant victory for the rule of law and for the safety of our communities”. Eric Schmitt, Missouri Attorney General, tweeted the decision was a “huge victory for border security”.

Diana Kearney, senior legal counsel at Oxfam, a migrant rights group engaged in separate litigation to end Title 42, lamented Friday’s ruling. “This decision to resurrect Title 42 fuels the flame of our nation’s worst xenophobic urges, ignores our nation’s legal obligations to uphold basic human rights, and exposes some of the world’s most vulnerable people to incredible violence,” a- she wrote in a public statement. “We will continue to work with our partners on behalf of all asylum seekers to ensure the Biden administration delivers on its commitment to end this racist policy.”

Read more: Biden officials deflect blame as US braces for border influx of migrants

The current state of affairs on Title 42

The injunction means Title 42 will remain in place for the foreseeable future, “making it even harder for the Biden administration to manage the border,” says Aaron Reichlin-Melnick, senior policy adviser at the U.S. Immigration Council. “The order will force them to maintain the status quo.”

Immigrant rights advocates say the ruling will block years of work to restore access to asylum at the US-Mexico border.

“It’s an expression of the extreme extreme of our country,” Linda Corchado, director of the Las Americas Immigrant Advocacy Center in El Paso, Texas, told TIME in an interview before the ruling was released. The injunction, she adds, shows how far the United States has gone to the right of the political spectrum when it comes to immigration policy. “It’s really up to the rest of this country to start finding its moral compass…we owe it to the rest of America and I think the rest of America doesn’t even know each other anymore.”

Border towns like El Paso and San Diego, advocates say, prepared for the end of Title 42 for months, including keeping reception capacity close at hand, coordinating with other advocacy organizations rights in towns farther from the border and raising funds for legal representation, transportation, clothing, food and other resources asylum seekers would need to travel to their final destination in the United States and begin the process of asylum.

An expected influx of migrants at the US-Mexico border

On April 26, DHS Secretary Alejandro Mayorkas released a 20-page memorandum detailing the government’s plan to address the end of Title 42 by building temporary treatment 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 penalties on those who commit illegal entry. It’s unclear to what extent DHS was able to follow through on its plan before Judge Summerhays’ restraining order was issued.

Read more: The battle to ‘stay in Mexico’ shows how US immigration policy has reached the ‘peak of confusion’

The injunction comes at the same time as the Biden administration is before the Supreme Court arguing that it has the power to end another controversial Trump-era policy, the Migrant Protection Protocols (MPPs) or policy. “Stay in Mexico”. The MPP requires migrants seeking asylum in the United States to wait in Mexico while their claims are reviewed.

The Biden administration has sought to end the policy since June 2021, but Texas and Missouri have challenged the administration’s attempt to end the program. The states have so far prevailed, resulting in a court order directing the administration to continue to enforce the MPP in good faith until the Supreme Court rules otherwise.

The administration is now ordered to continue enforcing Title 42 as well, pending further legal battles. Experts say the administration’s efforts to end Title 42 could mirror its legal battles over the MPP. The lawsuit is the latest in a long line of litigation that show that it’s not Congress, or even the executive branch, that shapes American immigration these days, it’s the federal judiciary.

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Write to Jasmine Aguilera at jasmine.aguilera@time.com and Madeleine Carlisle at madeleine.carlisle@time.com.


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