U.S. can’t quickly expel migrants under pandemic-era health rule, federal judge says

Migrants arrive in Nuevo Laredo, Mexico, after being sent across the border by U.S. Customs and Border Protection in July 2019. (Credit: Miguel Gutierrez Jr./The Texas Tribune)

A federal judge on Tuesday blocked the federal government from continuing to use an emergency health order known as Title 42 to immediately expel migrants at the southern border after they have entered the United States.

Judge Emmet Sullivan of the U.S. District Court in Washington, D.C., ruled that the Centers for Disease Control and Prevention’s use of Title 42 to prevent people from accessing the asylum process is “arbitrary and capricious” and a violation of the law because it was not implemented properly.

“It is unreasonable for the CDC to assume that it can ignore the consequences of any actions it chooses to take in the pursuit of fulfilling its goals, particularly when those actions included the extraordinary decision to suspend the codified procedural and substantive rights of noncitizens seeking safe harbor,” Sullivan wrote in his opinion.

Sullivan initially said he would not stay his order pending an appeal, which would force the Biden administration to stop using Title 42 immediately. But on Wednesday, Sullivan granted a request filed late Tuesday by the U.S. Department of Justice to give immigration officials five weeks to comply with the order. That gives the government until Dec. 21 to end Title 42.

The Biden administration attempted to halt Title 42 removals this year but was blocked after a lawsuit by Republican-led states.

Sullivan’s ruling stems from a lawsuit filed by the American Civil Liberties Union in January 2021 that argued Title 42 violated U.S. asylum laws and that the Trump administration used the pandemic as a pretext to invoke Title 42 and use it as an immigration tool.

In March 2020, the CDC under the Trump administration invoked Title 42 for the first time since its creation in 1944 and said it was a necessary step to help stop the spread of COVID-19 in immigrant detention centers, where many migrants are placed after they arrive at the U.S.-Mexico border. Dr. Anthony Fauci, the nation’s top infectious disease expert, has said that immigrants are not driving up the number of COVID-19 cases.

Since then, immigration officials have used the health order more than 2 million times to expel migrants, many of whom have been removed multiple times after making repeated attempts to enter the U.S. Under Title 42, the recidivism rate — the percentage of people apprehended more than once by a Border Patrol agent — has increased from 7% to 27% since fiscal year 2019.

Before Title 42, people entering the U.S. through the border would be apprehended by immigration agents, processed and placed in removal proceedings unless the person requested asylum. Under Title 42, immigration agents immediately expel people to Mexico regardless of whether they are requesting asylum.

Earlier this year, the Biden administration attempted to end the use of Title 42. But in April, a group of Republican-led states filed a lawsuit, which Texas later joined, in Louisiana, arguing that lifting Title 42 would create chaos at the U.S.-Mexico border and force the states to spend taxpayer money providing services like health care to migrants.

In May, U.S. District Judge Robert R. Summerhays blocked the Biden administration from ending Title 42, and the administration appealed; the case is pending in the 5th U.S. Circuit Court of Appeals.

Sullivan’s decision Tuesday was welcomed by immigrant rights advocates who have argued that Title 42 has put vulnerable migrants in dangerous situations in Mexican border cities where they are frequent targets of criminals.

“This ruling is proof that Title 42 was never about public health — it was a thinly veiled racist smokescreen put in place by the previous administration and continued by the current administration,” said Donna De La Cruz, director of communications for the Immigrant Legal Resource Center, a national immigrant rights organization, in a statement. “President Biden must once and for all eliminate the use of Title 42 for asylum seekers.”

Texas Gov. Greg Abbott, who has frequently criticized Biden’s immigration policies, said in a tweet that Sullivan’s decision is “disastrous,” adding that it signals to criminals that the border is open.