Federal Judge Stays Title 42 Ruling to Give Administration Time to Adjust

WASHINGTON — A federal judge on Wednesday granted the Biden administration’s request for a stay of his earlier order, striking down the controversial Title 42, a Trump-era immigration policy that has since allowed authorities to expel more than 2.4 million migrants who crossed the U.S.-Mexico border.

U.S. District Judge Emmet Sullivan said in his latest order on the policy that he was granting the requested stay with “great reluctance.”

The official end of Title 42 will now come at midnight on Dec. 21.

In a written statement, the American Bar Association, which had opposed the policy, said it looked forward to the demise of what it called “a pandemic-era border expulsion policy.”

“The ABA believes that all people seeking protection from persecution or torture are entitled to a full and fair adjudication comporting with U.S. and international law,” the statement said. 

“Instead, Title 42 has blocked asylum seekers from applying for protection at the border and led to their expulsion from the U.S. without adjudication of their claims,” it continued.

Sullivan had only just struck the immigration policy down on Tuesday, writing in his order that Title 42 is “arbitrary and capricious in violation of the Administrative Procedure Policy Act.”

Prior to Title 42, all migrants arrested at the border were allowed into the U.S. and processed under immigration law. 

Sullivan’s order restores that policy, allowing asylum seekers to wait in the U.S. and await their day in immigration court.

Sullivan also chastised the Centers for Disease Control and Prevention, which issued the public health order on which Title 42 was premised, for its decision “to ignore the harm” its order could potentially cause.

Among other things, he wrote, the CDC failed to consider alternatives to expulsion such as allowing migrants to self-quarantine in the U.S. homes of family and friends, or even homeless shelters.

“With regard to whether defendants could have ‘ramped up vaccinations, outdoor processing, and all other available public health measures’ …  the court finds the CDC failed to articulate a satisfactory explanation for why such measures were not feasible,” Sullivan wrote.

But Lee Gelernt, the American Civil Liberties Union attorney who argued the case, said Title 42 was “never about public health.”

“Tuesday’s ruling finally ends the charade of using Title 42 to bar desperate asylum seekers from even getting a hearing,” he said.

In a statement following the ruling, the Department of Homeland Security said that, if granted, “the delay in implementation of the court’s order will allow the government to prepare for an orderly transition to new policies at the border.”

The department added that it would continue to enforce immigration laws at the border, work with other countries to take action against smuggling networks and “address the root causes of irregular migration.”

More than 2.4 million Title 42 expulsions have been carried out at the U.S.-Mexico border since the policy was first put in place under former President Donald Trump in March 2020 amid the COVID-19 pandemic.

But in April, the CDC said the order was no longer needed to stop the spread of COVID-19. 

With that, the Biden administration began making plans to rescind the policy, but its intentions were upended by a federal judge in Louisiana, who ruled the White House couldn’t end it without having a plan in place to protect the two dozen states who sued to keep Title 42 on the books.

Barring appeal, Sullivan’s ruling could be the last word on the matter.

Among those who cheered his initial ruling on Tuesday were members of the faith and religious community.

“This ruling is an important step in working towards finally restoring asylum at our border,” said Dylan Corbett, executive director of the Hope Border Institute in El Paso, Texas.

“As a border community, we see daily the tragic human consequences of asylum-denying policies like Title 42,” Corbett said. 

“Judge Sullivan’s ruling provides the Biden administration with a clear opportunity to do the right thing and put into place policies which welcome vulnerable persons on the move with dignity and compassion,” he added.

Meanwhile, Anna Gallagher, executive director of the Catholic Legal Immigration Network, based here in Washington said she and her members are praying the decision will “lead to a reimagination and rebuilding of border and asylum policy.”

“The U.S. has the resources to move quickly and create well-functioning systems that honor the right to seek asylum — we only need commitment, creativity and compassion,” she said.

But not everyone viewed the ruling so happily.

For instance, Sen. John Cornyn, R-Texas, said, “what is happening now on the border and has happened the last two years under the Biden administration has been nothing short of a humanitarian and public safety crisis.”

“And if you think things are bad now, they’re about to get worse,” he said.

Cornyn called Title 42 a tool that Border Control officers could use to at least “try to modulate the flow of people coming across the border.

“This isn’t a time to start scrambling and come up with a plan. It should have been happening years ago,” the senator said.

In a statement the Department of Health and Human Services said the delay in implementation of the court’s order “will allow the government to prepare for an orderly transition to new policies at the border.”

“But to be clear, under the unopposed motion, Title 42 would remain in place for some period. During the period of this freeze, we will prepare for an orderly transition to new policies at the border,” the department said.

“We continue to work with countries throughout the Western Hemisphere to take enforcement actions against the smuggling networks that entice migrants to take the dangerous and often deadly journey to our land borders and to address the root causes of irregular migration that are challenging our hemisphere as a whole,” the statement said.

Dan can be reached at [email protected] and @DanMcCue