Federal Judge Postpones Planned End to Title 42 Expulsions

LAFAYETTE, La. — A federal judge in Louisiana on Friday blocked the Biden administration from letting Title 42 expire as it was originally planned to do this week.

District Judge Robert Summerhays of the U.S. District Court for Western Louisiana issued his ruling one week after hearing initial arguments in the federal lawsuit that sought to delay the termination. The legal challenge to the Title 42 revocation was brought by a coalition of state attorneys general who argued the Biden administration did not follow the correct procedures when planning its termination, The Well News previously reported.

In his ruling, Summerhays said the Biden administration violated administrative procedure laws in scheduling Title 42’s expiration and that doing so would cause “irreparable harm” due to the expected costs imposed on plaintiff states through providing health care, law enforcement, education and other services for migrants. Bipartisan and bicameral lawmakers pushed back on the Biden administration’s plans to end Title 42 on its initial expiration date of May 23.

“The court made the right decision to keep Title 42 in place,” Sen. John Barrasso, R-Wyo., said in a written statement. “Ending Title 42 would be a complete disaster for a nation already suffering from the Biden border crisis. We have a humanitarian, public health, and national security emergency happening at our southern border. Our border patrol agents are overwhelmed by a stampede of illegal immigrants crossing the border every day.”

In a statement, the Department of Justice said the authority had been invoked due to the “unprecedented public-health dangers caused by the COVID-19 pandemic,” but the order is no longer necessary in the opinion of the Centers for Disease Control and Prevention. The DOJ filed an appeal with the Fifth U.S. Circuit Court of Appeals on Friday, setting the stage for more legal battles in the coming weeks.

Twenty-two states in total joined Arizona’s lawsuit to delay Title 42’s expiration, although only two of those states — Texas and Arizona — share a border with Mexico, as migrant rights advocates have pointed out. While the delay is temporary, Summerhays’ ruling granting a preliminary injunction in the case sets no end date for Title 42.

“Today’s ruling is a significant win as Title 42 is one of the few policies that is actually working,” said Arizona Attorney General Mark Brnovich in a written statement. “I’m grateful to the court for upholding the rule of law and helping maintain some level of sanity as we continue to battle the Biden-made border crisis.”

The Department of Homeland Security had prepared for an expected increase of migrant border crossings upon Title 42’s rescission. The remaining mechanism for deportation after Title 42’s end is Title 8, which allows those who attempt to enter the country without authorization to submit asylum claims to remain in the United States.

Earlier this month, Homeland Security Secretary Alejandro Mayorkas said on CNN’s “State of the Union” that his agency is preparing for as many as 18,000 migrants daily once Title 42 is terminated. More than 1.9 million migrants have been expelled from the country under the order since its institution in March 2020, according to Customs and Border Protection data.

“Relying on Title 42 authority to expel asylum seekers was a red herring from the start — a policy pulled out of obscurity by the Trump administration to further its anti-immigrant goals and as an ineffective deterrence strategy,” Kids in Need of Defense President Wendy Young said in a written statement. 

“It’s usefulness as a policy to protect public health remains as specious as it was from the start and its goal remains the same: to keep those seeking safety — including children and families — from accessing the U.S. immigration system which by law gives them a chance to make their case to remain in the United States.”

Although the Biden administration appeared ready to move on from the migrant expulsion policy it had once defended using in court, it has since pivoted to focus on a more comprehensive immigration plan. Mayorkas dealt with tough questions over those plans in testimony before the House Judiciary Committee in April as previously reported by The Well News, but stressed that the administration’s plan was suitable to manage the expected surge in border crossings.

Most Americans oppose Title 42’s planned termination according to a POLITICO-Harvard survey conducted between May 6 and May 9. The survey found that 55% of respondents opposed ending the use of Title 42, although 64% of respondents who identified as Democrats supported its termination.

“Make no mistake. This Trump-era policy, which the Biden administration kept in place for over a year after assuming office, is rooted in racism and xenophobia and has never had any basis in public health,” National Immigration Project Executive Director Sirine Shebaya said in a written statement. 

“By denying people their right to seek asylum, Title 42 will continue to subject thousands of people to harm every day that it remains in place. Nobody should be complicit in the violence and harm that this policy has produced — not the courts, and not our representatives in Congress. And a group of anti-immigrant states should certainly not be dictating our national border and immigration policy.” 

Reece can be reached at [email protected] and https://twitter.com/ReeceNWrites