JUDGE BLOCKS PLAN TO REMOVE TITLE 42
Pandemic-era restrictions to remain in effect at border
A Louisiana judge has extended his temporary block of the Biden administration’s plan to lift pandemic-related border restrictions on Monday.
In a ruling issued Friday, U.S. District Judge Robert Summerhays wrote that lawyers for 24 plaintiff states had established that a “significant threat of injury” would arise if Title 42, a 1944 federal public health statute implemented by the Trump administration at the start of the pandemic, were to be lifted. He cited federal government figures predicting as large as a threefold increase in daily border crossings.
“The record also includes evidence supporting the plaintiff states’ position that such an increase in border crossings will increase their costs for health care reimbursements and education services,” Summerhays wrote in the 47-page ruling. “These costs are not recoverable.”
Last week, Summerhays heard argu
ments from lawyers for Louisiana, Arizona and Missouri in their lawsuit with 21 other states seeking to prevent the federal government from rescinding the Trump administration’s unprecedented decision to use Title 42, citing the need to curb the spread of COVID-19.
The ruling by Summerhays, a Trump appointee, keeps Title 42 in place as the lawsuit proceeds.
The decision marks the latest example of a federal court blocking President Joe Biden from ending restrictive Trump-era immigration policies or implementing his own. Republican-led states have also taken the Biden administration to court to prevent a 100-day moratorium on deportations and its immigration enforcement priorities, as well as to force the restart of the so-called Remain in Mexico program, which requires migrants to wait across the border for U.S. immigration court hearings.
Federal officials could appeal. But the U.S. 5th Circuit Court of Appeals, which receives cases from Louisiana, has ruled against the Biden administration on a variety of policies.
In the case before Summerhays, attorneys general for Arizona and the other states say the U.S. Centers for Disease Control and Prevention didn’t follow proper administrative procedures that require public notice and gathering of comments before moving to end the restrictions under Title 42. They argue that if Title 42 were lifted, border crossings will increase and border states will suffer from increased strain on their health care, education and law enforcement systems.
The Biden administration has argued that Title 42 is not an immigration policy, but a public health restriction that is no longer necessary.
Even so, the result was that its implementation slowed immigration to the U.S.
A family in Tijuana who wanted to request asylum and advocacy groups including Innovation Law Lab sought to intervene in the lawsuit. They argued that a court order keeping Title 42 in place should only apply to states involved with the suit. Summerhays denied their request.
Alicia Duran Raymundo, her partner and their 6-yearold daughter fled El Salvador after gang members threatened to torture and kill them. She said in a news release from her lawyers last week that they wanted to live with extended family in California while pursuing asylum, but instead joined the thousands of migrants living in Mexican border towns while they wait for the U.S. to reopen its doors.
“We’ve tried many times to ask for asylum but they just tell us the border is closed,” Duran said.
Seeking asylum is a legal right guaranteed under federal and international law, regardless of how someone arrived on U.S. soil. Some of those turned away are fleeing persecution, while others pushed out by turmoil in their home countries seek jobs and security.
Though migrants can’t seek asylum under Title 42, they can still be screened under the United Nations Convention Against Torture. But those screenings are more difficult to pass.
Lee Gelernt, deputy director of the American Civil Liberties Union’s immigrant rights project, noted that regardless of Friday’s decision, a prior ruling in Washington, D.C., District Court taking effect Monday prevents Title 42 from applying to families who face persecution or torture if they are expelled. Gelernt is lead attorney in that case.
“Hypocritically, the states that brought this lawsuit seemingly care about COVID restrictions only when they involve asylum seekers,” he said. “The lawsuit is a naked attempt to misuse a public health law to end protections for those fleeing danger.”
The Biden administration previously ended the use of Title 42 on children who arrive at the border without a parent. More than 12,000 children re-entered U.S. Customs and Border Protection custody as unaccompanied minors in fiscal year 2021 after being expelled to Mexico under the border policy, usually with their parents, according to CBS News.
Migrants have been removed from the U.S. nearly 2 million times since Title 42 was first used in March 2020.
Last month, federal agents stopped migrants more than 234,088 times — surpassing a 22-year high of 221,303 in March — a figure driven partially by the arrivals of Ukrainians fleeing war. But the total doesn’t reflect the actual number of people encountered because quick expulsions under Title 42 lack the same consequences as proper deportations, including civil penalties and criminal prosecution, and enable many single adults to make repeated attempts to get into the country undetected.
Nearly 21,000 Ukrainians have requested to enter the U.S. at ports of entry along the Mexico border, the vast majority at the San Ysidro Port of Entry, according to the Transactional Records Access Clearinghouse, a nonpartisan research center at Syracuse University. Ninetyfive percent of Ukrainians were allowed to enter, compared with just 11 percent of people from other countries.
Nearly half of the migrants stopped by border agents are from countries outside of Mexico and Central America’s Northern Triangle, with increases in migration seen most recently among Brazilians, Cubans and Haitians. Trends have shifted away from mostly families to mostly single adults, Customs and Border Protection data show.
Federal officials rely on Mexico and other countries to receive migrants subject to Title 42, which has led to people from Mexico, Guatemala, Honduras and El Salvador most frequently being expelled. Exemptions are made for humanitarian reasons and when Mexico or another country won’t take those whom the U.S. wants to remove. The policy has kept out about 60 percent of migrants who have sought entry since it started, according to CBP data.
In plans for lifting Title 42, Biden administration officials have prepared for as many as 18,000 migrants attempting to cross the border each day. That’s compared to an average of just under 5,400 per day between May 10 and 16, according to CBP figures provided as part of the Louisiana lawsuit.