Federal Judge Blocks Biden from Ending Title 42 Border Restrictions

A federal judge on Friday ruled that a pandemic-related public health order must continue, allowing the federal government to turn away migrants at the U.S.-Mexico border, including those seeking asylum.

U.S. District Judge Robert Summerhays of Louisiana sided with the 24 Republican-led states that sued the federal government to keep the guidelines in place. He said the states had established a “significant threat of injury” that lifting the order would have on them.

“The record also includes evidence supporting the Plaintiff States’ position that such an increase in border crossings will increase their costs for healthcare reimbursements and education services,” Summerhays wrote. “These costs are not recoverable.”

The judge’s ruling likely means that the Title 42 restrictions won’t end Monday. The Biden administration can appeal, but the U.S. Fifth Circuit Court of Appeals, which hears cases from Louisiana, has ruled against the administration on several policies.

Title 42 is a health policy, part of the Public Health Service Act of 1944, that gives authorization to the U.S. Secretary of Health and Human Services to put in place measures to stop the spread of communicable diseases from foreign countries into the United States.

The policy was imposed in March 2020 under the Trump administration at the beginning of the COVID-19 pandemic. It has denied migrants a chance to request asylum under U.S. law and international treaty on public health grounds.

The U.S. Centers for Disease Control and Prevention announced in April that it would terminate the Title 42 order on May 23 because it deemed it “no longer necessary” as COVID-19 cases decreased and as vaccines became widely available. ((https://www.cdc.gov/media/releases/2022/s0401-title-42.html))

After the CDC announcement, Louisiana, Arizona, Missouri and 21 other states sought to bar the administration from rescinding the Title 42 order.

Republican-led states argued in court that the Biden administration should have gone through a formal notice and comment-taking process to end the Title 42 policy, even though the CDC under the Trump administration had said it could stop enforcing the policy at any moment.

In April, migrant encounters at the southern border led to about 97,000 migrant expulsions. Under Title 42 U.S. border officials may quickly expel migrants to Mexico or their home countries without processing their asylum claims.

According to U.S. government data, migrants have been expelled about 2 million times since Title 42 was put in place in 2020.

Immigration advocates have often criticized the U.S. use of Title 42 as a deterrence policy, saying it has harmed those seeking safety at the southern border.

“It is a failed policy no matter how you look at it, and keeping Title 42 in place is basically a guarantee of continued chaos, high repeat crossings, and continued inability to actively make the changes we need to make to our asylum system,” according to Aaron Reichlin-Melnick, senior policy counsel at the American Immigration Council.